Jharkhand Urja Vikas Nigam Limited through Its Law Officer Mithilesh Kumar Vs Ms Himadri Steel Pvt. Ltd. through Its Director Mahesh Kumar Agarwal

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.648 of 2018

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1. Jharkhand Urja Vikas Nigam Limited, Engineers Building, H.E.C. Township, Dhurwa, P.O. & P.S. Dhurwa, Dist. Ranchi through its Law Officer namely Mithilesh Kumar Aged about 54 yrs., son of R.B. Choudhary, resident of Kusai Colony, P.O. & P.S.Doranda, Dist. Ranchi.

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2. Jharkhand Bijli Vitran Nigam Limited, Engineers Building, H.E.C. Township, Dhurwa, P.O. & P.S. Dhurwa, Dist. Ranchi through its Law Officer namely Mithilesh Kumar Aged about 54 yrs., son of R.B. Choudhary, resident of Kusai Colony, P.O. & P.S.Doranda, Dist. Ranchi.

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… … Appellants/ Respondents

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Versus

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1. M/s. Himadri Steel Pvt. Ltd. Having its Office & Works at Nuagoan, Satkatia, P.O & P.S-Chakuliya, Dhalbhumgarh, Dist-East Singhbhum, Jharkhand, represented through one of its Director Mahesh Kumar Agarwal, Son of Sri Harishankar Santhalia, Resident of 12, Diagonal Road, Bistupur, P.O & P.S. Bistupur, Dist-East Singhbhum… …..

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Respondent/Writ Petitioner

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2. The General Manager-Cum-Chief Engineer, Singhbhum Electric Supply Area, Bistupur, Jamshedpur, Jharkhand Bijli Vitran Nigam Limited, office at Co-operative Building, Bistupur, Jamshedpur, P.O. & P.S. Bistupur, Dist. East Singhbhum.

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3. The Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur, Jharkhand Bijli Vitran Nigam Limited, Office at Vikas Bhawan, P.O. & P.S.

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Adityapur, Dist. Saraikella-Kharsawan.

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4. Electrical Executive Engineer (C&R), Electric Supply Circle, Jamshedpur, Jharkhand Bijli Vitran Nigam Limited, Office at Vikas Bhawan, P.O. & P.S. Adityapur, Dist. Saraikella-Kharsawan.

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5. Electrical Executive Engineer, Electric Supply Division, Ghatshila, Jharkhand Bijli Vitran Nigam Limited, P.O. & P.S. Ghatshila, Dist. Saraikela, Kharsawan.

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6. Assistant Electrical Engineer, Electric Supply SubDivision, Chakulia, Jharkhand Bijli Vitran Nigam Limited, P.O. & P.S. Chakulia, Dist. East Singhbhum.

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… … Performa Respondents/Respondents

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-------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Mr. Rajiv Ranjan, Sr. Advocate : Mr. Mrinal Kanti Roy, Advocate

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For the Resp. No.1 : Mr. Dhananjay Kr. Pathak, Advocate Mr. Shashi Kanti Mishra, Advocate Mr. Vishal Kumar, Advocate

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C.A.V. on 08.07.2025 Pronounced on 08.08.2025 Per Sujit Narayan Prasad, J.

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Prayer

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1. The instant appeal preferred under Clause-10 of Letters Patent is directed against the judgment dated 05.09.2018 passed by the learned Single Judge of this Court in W.P.(C) No.6054 of 2017, whereby and whereunder, the writ petition has been allowed by passing the following directions;

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“By an interim order dated 14.03.2018, the respondent-Nigam was directed to resume supply of electricity at the petitioner’s premises on deposit of Rs.25 Lacs (Rupess Twenty Five Lacs). The amount so deposited by the petitioner shall be adjusted against the future bill(s) raised by the Nigam, in terms of the Regulations.”

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Facts

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2. The brief fact of the case, as per the pleading made in the writ petition as also incorporated in the impugned judgment, required to be enumerated, which reads as under:-

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3. It is the case of the writ petitioner that the writ petitioner, a company registered under the Companies Act, 1956, has been granted electrical connection under HTSS tariff with contract demand of 3000 KVA, which was energized on 03.07.2006. On account of a massive blast in the cubical metering unit there was electricity break-down in the petitioner’s premises which was rectified on 16.06.2017 by a team of the respondentNigam’s officials and a report was prepared. The report thus prepared records that metering unit chamber was slightly damaged, K-phase CT and all PT were found in proper condition (written as OK), meter reading was correct and there was proper sealing, however, b-phase CT which was totally cracked and damaged was replaced. No evidence of mis-

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utilisation or theft of electricity was found. 4. The meter readings for the previous successive several months or after June, 2017 record description of meter chamber and the meter chamber glass and everything seems to be fine till 26.09.2017 when an inspection was carried out at the petitioner’s premises; the meter reading report has been prepared by a 5-member team of the Nigam’s officials. 5. On the basis of a written report of the Assistant Electrical Engineer, Chakulia P.S. Case No. 30 of 2017 under Section 379/420/353 I.P.C and under Section 135/137/138 of the Electricity Act, 2003 was lodged. On 27.09.2017, the petitioner has submitted its written objection to the inspection report dated 26/27.09.2017, however, on 29.09.2017 provisional assessment under Section 135 of the Electricity Act, 2003 read with Clause 11.9 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 was passed and the petitioner was directed to pay Rs.3,23,71,524/which according to the respondent-Nigam is the amount of loss caused due to theft of electricity by the petitioner. The petitioner has pleaded that during investigation no evidence of theft of electricity was found and accordingly, the police has submitted Final Form No. 39 of 2017 dated 30.11.2017; a protest-cum-complaint to the Final Form. Being aggrieved with the aforesaid, writ petition being W.P.(C) No.6054 of 2017 has been filed. The learned Single Judge by taking into

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consideration all aspects of the matter, has quashed the provisional assessment order dated 29.09.2017 by allowing the writ petition.

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6. It is evident from the factual aspect that the writ petitioner, a company registered under the Companies Act, 1956, has been granted electrical connection under HTSS tariff with contract demand of 3000 KVA, which was energized on 03.07.2006. On account of a massive blast in the cubical metering unit there was electricity break-down in the petitioner’s premises which was rectified on 16.06.2017 by a team of the respondent-Nigam’s officials and a report was prepared. The report thus prepared records that metering unit chamber was slightly damaged, K-phase CT and all PT were found in proper condition (written as OK), meter reading was correct and there was proper sealing, however, b-phase CT which was totally cracked and damaged was replaced. No evidence of mis-utilisation or theft of electricity was found.

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7. The meter readings for the previous successive several months or after June, 2017 record description of meter chamber and the meter chamber glass and everything seems to be fine till 26.09.2017 when an inspection was carried out at the petitioner’s premises; the meter reading report has been prepared by a 5-member team of the Nigam’s officials. 8. On the basis of a written report of the Assistant Electrical Engineer, Chakulia P.S. Case No. 30 of 2017 under Section

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379/420/353 I.P.C and under Section 135/137/138 of the Electricity Act, 2003 was lodged. On 27.09.2017, the petitioner has submitted its written objection to the inspection report dated 26/27.09.2017, however, on 29.09.2017 provisional assessment under Section 135 of the Electricity Act, 2003 read with Clause 11.9 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 was passed and the petitioner was directed to pay Rs.3,23,71,524/which is the amount of loss caused due to theft of electricity by the writ petitioner. 9. The issue which was the subject matter before the learned Single Judge was the legality of the provisional assessment order dated 29.09.2017. The issue of legality of the provisional assessment order was raised on the ground of lack of jurisdictional foundational fact and the procedural irregularities, which led the learned Single Judge to quash the order of provisional assessment, which is the subject matter of the present appeal.

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Argument of the learned senior counsel for the appellant

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10. The appeal has been filed on behalf of the licensee, JUVNL on the following grounds: -

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(i) The learned Single Judge has not appreciated the statutory command as provided under Section 126 of the Electricity Act, 2003 (hereinafter referred to as ‘the Act, 2003’), rather, the same has been ignored by entertaining the writ

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petition without taking into consideration the fact that if the provisional assessment has been made, then, the requirement under the law is to file an objection by the consumer as required to be filed under Section 126(3) of the Act, 2003 and the competent authority is required to pass a final assessment order as per the provision of Section 126(5) of the Act, 2003.

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(ii) It has been contended that the remedy is available for the aggrieved against the final assessment order passed under Section 126(5) of the Act, 2003 lies under Section 127 of the Act, 2003 by filing an appeal.

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(iii) It has been contended that the learned Single Judge, ignoring the alternative remedy available under the statute has entertained the writ petition by going on the premise that there is lack of jurisdictional foundational fact and the procedural irregularity, which according to the learned senior counsel appearing for the appellant-JUVNL, is not just and proper, reason being that, the moment the provisional assessment order has issued, then, it is incumbent upon the consumer to make an objection for its consideration by the competent authority.

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(iv) It has been contended that the moment, the provisional assessment order has been issued, then the same is to be given its logical end, since, the provision as contained under Section 126 and the forum available under Section 127 are complete code in itself and it is only after the order having

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been passed by the competent authority under Section 127 of the Act, 2003, the writ petition is to be preferred.

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(v) The argument has been advanced that the issue of jurisdiction is not the subject matter, rather, the jurisdictional foundational fact has been taken into consideration by the learned Single Judge and in addition thereto, the procedural irregularity.

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(vi) It has been contended that there is difference in between the jurisdictional error and jurisdictional foundational fact.

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The contention, therefore, has been raised that if there is lack of jurisdiction then certainly the writ will lie but, in a case, where the procedural irregularity or the jurisdictional foundational fact has been made a subject matter to entertain the writ petition, even though, the remedy is available under the statute, the same cannot be said to be just and proper.

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(vii) Learned senior counsel has submitted that the question has already been settled by the Hon’ble Apex Court in the case of Maharashtra State Electricity Distribution Company Limited Vrs. Appellate Authority and Anr., reported in (2018) 3 SCC 608.

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(viii) Learned senior counsel, based upon the aforesaid grounds, has submitted that the impugned judgment, therefore, requires interference.

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Arguments of the learned counsel for the Respondent-Writ

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Petitioner

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11. Per Contra , Mr. Dhananjay Kr. Pathak, learned counsel for the respondent-writ petitioner has taken the following the grounds in defending the impugned judgment: -

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(i) There is no dispute that Section 126 and Section 127 are self-contained code in itself, then, the writ petition is to be entertained if there is any jurisdictional error as the fact of the present case is, wherein, the jurisdictional foundational fact is not available.

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(ii) The learned Single Judge by taking into consideration the aforesaid fact has entertained the writ petition and passed the positive direction, therefore, the same cannot be said to suffer from an error.

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(iii) It has been submitted that the proceeding under Section 126 of the Act, 2003 is to go but the same cannot be by ignoring the procedure which is to be followed in the matter of conducting provisional assessment as per the provision as contained under Section 126(1) of the Act, 2003.

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(iv) It has been contended that the provision as contained under Section 126(1) of the Act 2003, itself clarifies that the proceeding under the aforesaid Section is to go only on the basis of conclusion of unauthorized use of electricity if it has been reached by the assessing officer by conducting an inspection.

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But here in the instant case, there is no conclusion of

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unauthorized use of electricity, rather, the conclusion of suspected theft.

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(v) The contention has also been made by relying upon the Supply Code, 2015, wherein, the issue of unauthorized use of electricity and theft has been dealt with under Clause-11.

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The issue of suspected theft has also been dealt with under the provision of Regulation-11.14 of the Supply Code, 2015, wherein, the procedure has been provided that what to be done in a case of suspected theft.

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But the procedure as stipulated in the case of suspected theft, has not been followed, therefore, the same has been taken by the learned Single Judge as a lack of availability of foundational fact.

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(vi) Learned counsel has also argued that a proceeding is to be initiated strictly as per the provision of law and in order to strengthen his argument, he has relied upon the judgments rendered by the Hon’ble Apex Court in the case of Hukam Chand Shyam Lal Vrs. Union of India & Ors., reported in (1976) 2 SCC 128 , Sanwarmal Kejriwal Vrs. Vishwa Cooperative Housing Society Ltd. & Ors., reported in (1990) 2 SCC 288 , Shrisht Dhawan (Smt) Vrs. M/s Shaw Brothers, reported in (1992) 1 SCC 534.

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(vii) Learned counsel appearing for the respondent-writ petitioner, based upon the aforesaid grounds, has submitted that the judgment passed by the learned Single Judge,

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therefore, requires no interference.

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Analysis

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12. We have heard the learned counsel for the parties and gone across the finding recorded by the learned Single Judge in the impugned judgment.

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13. This Court, on the basis of the argument advanced on behalf of the parties, has gathered the consideration which is to be made on the fact;

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(i) whether, the provisional assessment based upon the inspection report conducted in exercise of power conferred under Section 126(1) of the Electricity Act, 2003, can be said to be provisional assessment in the light of the aforesaid provision or not?

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(ii) whether in a case of suspected theft, a proceeding under Section 126(1) is barred?

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(iii) whether in absence of foundational fact even accepting or the procedural irregularity, can a provision of appeal as provided under Section 127 of the Act, 2003 be discarded and the writ petition be entertained without giving logical end to the issue of provisional assessment made under Section 126(1) of the Act, 2003?

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14. All the issues are interlinked and as such, the same are being taken up together for the purpose of consideration of rival submissions made on behalf of the parties and in order to come to the just conclusion regarding the legality and propriety of the

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impugned order passed by the authority as also the action so taken by the licensee in conducting the provisional assessment.

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15. But, before consideration of the aforesaid issues, the relevant is here to refer about the object and scope of enactment of the Electricity Act, 2003 in supersession to the earlier Electricity Act, 1910.

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16. The electricity supply in India was governed by three enactments, namely, Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998.

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17. The Indian Electricity Act, 1910, created the basic framework for the electric supply industry in India which was then in its fancy.

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18. The Act envisaged growth of the electricity through private licensee. It created the legal framework for laying down of wires and other works relating to the supply of electricity. The Electricity Supply Act, 1948 mandated the creation of State Electricity Board having the responsibility of arranging the supply of electricity in the State. But, over a period of time, however, the performance of the State Electricity Boards has deteriorated substantially on account of various factors. For instance, the power to fix tariff vests with the State Electricity Boards, they have generally been unable to take decision on tariffs in a professional and independent manner and tariff

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determination practice has been done by the State Governments.

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19. To address this issue and to provide for distancing of Government from determination of tariffs, the Electricity Regulatory Commission Act was enacted in 1998. It created the Central Electricity Regulatory Commission and has enabling provision through which the State Governments can create State Electricity Regulatory Commission. But different States have undertaken reforms through their own Reform Acts by separating Boards into separate generation, transmission and distribution companies. With the policy of encouraging private sector’s participation in generation, transmission and distribution and the objective of distancing the regulatory responsibility from the Government to the Regulatory Commission, the need for harmonizing and rationalizing the provisions in the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998 in a new self-contained comprehensive legislation arose. Accordingly, it became necessary to enact a new legislation for regulating the electricity supply in the country which would replace the existing laws, preserve its core features other than those relating to the mandatory existence of State Electricity Boards and the responsibility of the State Government and the State Electricity Boards with respect

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to regulating licenses. There is also need to provide for newer concepts like power trading and open access.

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20. Apart from that, the other object was to restrict the misutilization and loss of revenue to the Electricity Boards.”

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21. It is evident from the scope that the primary object in enactment of the Act, 2003 is to deal with the issue of revenue loss and for that purpose, the provision of Section 126 has been inserted in the new enactment which was not available in the earlier statutory provision, for ready reference, Section 126 of the Act, 2003 is being quoted as under: -

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“ 126.Assessment -(1) If on an inspection of any

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place or premises or after inspection of the equipments, gadgets, machines, devices found connected or uses, 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.

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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 provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of

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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 unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized 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 applicable for the relevant category of services specified in sub-section (5).”

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Explanation.—For the purposes of this section,— (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 person or authority or licensee concerned; or

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(iii) through a tampered meter; or

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(iv) for the purpose other than for which the

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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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22. The definition of “unauthorized use of electricity” with explanation ‘(b)’ of Section-126 of the Act, 2003 is as follows:- “(b) “unauthorized 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 authorized 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 authorized; or

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

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23. The provision of Section 126 of the Act 2003 comprises of

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six sub-provisions starts with sub-section (1) thereof, whereby and whereunder, the power has been conferred upon the competent authority to conduct the inspection with respect to the issue of unauthorized use of electricity and after coming to the conclusion of the use of the electricity said to be unauthorized, a notice is required to be given to the consumer in order to provide an opportunity to put-forth his defence.

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24. Sub-section (2) of Section 126 thereof provides that 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 and sub-section (3) provides that the person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any,

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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.

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25. Sub-section (5) of Section 126 provides that the period during which such unauthorized 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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26. The provision of Section 127 of the Act, 2003 also requires to be referred herein, which reads as under: -

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“ 127. Appeal to appellate authority .-(1) Any

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person aggrieved by the final order made under section 126 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.

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(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3[half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

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(3) The appellate authority referred to in subsection (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing

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officer and the appellant.

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(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

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(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.

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(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.”

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27. It is evident from Section 127 of the Act, 2003 that after

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the order having been passed of the final assessment in exercise of power conferred under Section 126(5) of the Act, 2003, an appeal will lie before the competent authority.

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28. It is, thus, evident that the issue of provisional assessment will culminate the moment the final assessment will be passed under sub-section (5) of Section 126 and the party (consumer) aggrieved will have an opportunity to prefer an appeal by taking aid of the provision of Section 127 of the Act, 2003, which means that the provision of Section 126 and Section 127 are code in itself.

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29. The question of entertaining the writ petition at this juncture also needs to be referred herein.

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30. There is no dispute that there is no embargo in entertaining the writ petition, rather, the writ petition can be entertained even though the alternative remedy is available

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depending upon the certain conditions, i.e., if the decision has been taken by the authority concerned without any authority or jurisdiction or the decision is contrary to the statutory provision or the decision is in violation of the principle of natural justice, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks. Mumbai & Ors., reported in (1998) 8 SCC 1, wherein, as under paragraph-15, the following issue has been laid down, which reads as under:-

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“ 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the

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evolutionary era of the constitutional law as they still hold the field.”

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31. The writ petition will lie depending upon the availability of the condition as referred hereinabove.

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32. This Court is proceeding further to examine the factual aspect of the present case, i.e.,

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“whether the condition which is required to be available in maintaining the writ petition is actually available in the present case or not?”

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33. But, before doing that, the reference of provision of Section 135 and Section 154 of the Act, 2003 also needs to be made herein, which is being quoted hereinbelow-:

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“135.Theft of Electricity-(1) whoever, dishonestly ,-

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(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or

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(b) 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 or wasted; or

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(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or

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(d) uses electricity through a tampered meter; or

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(e) 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 three years or with find or with both:

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Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use:

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(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; (ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity: Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of

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electricity for that period from any other source or generating station:

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Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorized shall disconnect the supply line of electricity:

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Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection:

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Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity

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within forty-eight hours of such deposit or payment.

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(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may-

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(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;

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(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being used for unauthorized use of electricity;

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(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

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Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

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(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.”

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“ Section 154. Procedure and power of Special Court. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), every offence punishable under [sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

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(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under [sections 135 to 140 and section 150] in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act :

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Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court:

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Provided further that if such Special Court is of opinion that further examination, crossexamination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, cross examination or re-examination, if any, as it may permit, the witness shall be discharged.

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(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in [sections 135 to

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140 and section 150] in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:

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Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

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Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

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(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973 (2 of 1974), be deemed to have been tendered under section 307 thereof.

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(5) The [Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or

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the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

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(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation. - For the purposes of this section, “civil liability” means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in [sections 135 to 140 and section 150].”

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34. Section 154(5) of the Act, 2003 stipulates about the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined, whichever is less.

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35. While, Section 154(6) of the Act, 2003 stipulates about the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the

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excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

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36. The question has crept up, as to whether, the proceeding under Section 126 and Section 135 of the Act, 2003 can go simultaneously or in a case where the FIR has been instituted for theft of electricity in view of the provision of Section 135 of the Act, 2003, is there any bar in proceeding by taking aid of Section 126 of the Act, 2003.

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37. The said issue has been settled by the Hon’ble Apex Court in the case of Executive Engineer Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, [(2012) 2 SCC 108]. (altogether three judgments).

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38. It is evident from the aforesaid ratio laid down by the Hon’ble Apex Court in the judgments referred hereinabove that the proceeding under Section 126 and 135 are distinct in nature and will go simultaneously. The reason has been assigned that the provision of Section 126 is being dealt with in a situation where the use of electricity unauthorized, meaning thereby, there is no mens rea, while, in a case of theft of

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electricity, mens rea is there.

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39. The Hon’ble Apex Court in the judgment rendered in the case of West Bengal State Electricity Distribution Company

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Limited & Ors. Vrs. Orion Metal Private Limited & Anr., reported in (2020) 18 SCC 588 , while interpreting the term “unauthorized use of energy” has been pleased to hold that the said terms is of wide connotation. There may be cases of unauthorized use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorized, etc. But at the same time, where there is an allegation of unauthorized use of energy by tampering the meter, such cases of unauthorized use of energy include “theft” as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other.

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40. It has further been held that both the proceedings initiated under Section 126 and Section 135 will operate parallelly.

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41. It has further been observed in the judgment passed in the case of West Bengal State Electricity Distribution Company Limited & Ors. Vrs. Orion Metal Private Limited & Anr., (supra) wherein, the judgment rendered by the Hon’ble Apex Court in the case of Executive Engineer Southern Electricity

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Supply Company Orissa Ltd. (SOUTHCO) & Anr. Vs. Sri Seetaram Rice Mill (supra) it has been held while dealing with the Scheme of the Act, that after inspection team notices unauthorized use of energy by tampering the meter tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. 42. The Hon’ble Apex Court has further laid down in the case of Maharashtra State Electricity Distribution Company Limited Vrs. Appellate Authority and Anr., (supra) has held that if the proceeding has been initiated under Section 126(1), culminated by passing the final assessment under sub-section (5) of Section 126, then, the same is to be given its logical end, i.e., by way of filing an appeal if the party is aggrieved under Section 127 of the Act, 2003. It has been held that that both Section 126 and Section 135 are independent in all respects and provide different kind of liability and consequences. One involves monetary liability (Section 126) whereas the other involves criminal liability (Section 135). The Board, is therefore, at liberty to take recourse to the provisions of Section 126 or/and 135 of the Act against such person/consumer as provided therein in accordance with law, for ready reference, the relevant paragraphs, i.e. paragraphs-10 to 18 of the said judgment need to be referred as under:-

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“ 10. Suffice it to say, the High Court while allowing

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the consumers' writ petitions and, in consequence, setting aside of the appellate order passed under Section 127 of the Act by the appellate authority rightly remanded the case to the assessing authority for making provisional assessment under Section 126 of the Act and then to take recourse under Section 127 of the Act for filing appeal, if need arises. We do not find any reason to disturb these directions which, in our opinion, are in conformity with the scheme of the Act.

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11. So far as the applicability of the provisions of the new Electricity Act, 2003 to the case at hand is concerned, though some doubts were raised about its applicability but, in our opinion, it has no substance. In our opinion, the 2003 Act does apply to the facts of this case because the 2003 Act came into force on 10-6-2003 whereas the inspection of the meter installed in Respondent 2's factory premises was made by the sleuths of the Board on 2-8-2003.

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12. It is, therefore, clear that the Board made an inspection of the meter after the 2003 Act came into force. The cause of action, therefore, accrued to the Board after the 2003 Act came into force and, therefore, the case of Respondent 2 was required to be dealt with in accordance with the procedure prescribed under the 2003 Act.

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13. Since the action was taken by the Board against Respondent 2 (consumer) under Section 126 of the Act by raising the provisional/final bill and, therefore, Respondent 2 was well within their right to file an appeal against such demand under Section 127 of the Act before the appellate authority.

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14. We cannot, therefore, accept the submission of the learned counsel for the Board that Respondent

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2 had no right of appeal under Section 127 of the Act to challenge the order/demand raised under Section 126 of the Act. In other words, Respondent 2 had right of appeal under Section 127 of the Act to challenge the order passed under Section 126 of the Act.

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15. Indeed, once the Act is held applicable to the controversy in question, a fortiori, all the provisions of the Act would then be applicable to the case which would obviously include a provision which provides a right of appeal to the appellate authority. 16. In the scheme of the Act, we find that Section 126 of the Act deals with assessment of electricity charges payable by such person (consumer) for unauthorised use of electricity whereas Section 135 deals with the cases of theft of electricity. In other words, once the Board detects the case of unauthorised use of electricity by any consumer, in such event, the Board gets a cause of action to proceed against such person/consumer under Section 126 or/and 135 under the Act. Both Sections 126 and 135 are independent in all respects and provide different kind of liability and consequences. One involves monetary liability (Section 126) whereas the other involves criminal liability (Section 135). The Board is, therefore, at liberty to take recourse to the provisions of Section 126 or/and 135 of the Act against such person/consumer as provided therein in accordance with law.

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17. In these circumstances, if the Board initiates any action against any person/consumer, then such action must be brought to its logical end in accordance with the procedure prescribed under the Act after affording an opportunity to such person/consumer.

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18. In view of the foregoing discussion and subject to the observations, we find no merit in the appeals, which fail and are accordingly dismissed. As a consequence to the dismissal of the appeals, the authorities are directed to comply with the directions of the High Court and pass consequential order under Section 126 of the Act in accordance with law in the case of consumers (respondents) within three months from the date of this order.”

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43. Adverting to the facts of the present case, the admitted case is that the provisional assessment has been made under Section 126(1) of the Act, 2003. The said provisional assessment has been appended as Annexure-3 at running page-103, for ready reference, the relevant part of provisional assessment is being referred as under:-

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“As directed by GM cum CE surprise inspection has been carried out by MRT officials along with supply officials. During inspection cubical metering arrangement was found raising two compartments one is meter chamber and other is CT, PT chamber. This cubical metering arrangement installed under metal sheet room and wall. This arrangement makes easily approach to the CT/DT of metering cubical. It has been absorbed that the nut in which GPC is used to affix is found welded at mid-point. This welding enables the removal of the seal to start the CT terminal point without disturbing seal. Two holes found in meter chambers. The cover of meter chamber was opened very easily without breaking the glass. The check metering unit secondary box control cable came out through given slot but more space between cable and slots.

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Further action will be as per norms.”

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44. It is evident from the said provisional assessment that the inspecting team has conducted provisional assessment in presence of the consumer representative, who has put his signature without making an objection.

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45. It is further evident that “the nut in which GPC is used to affix is found welded at mid-point. This welding enables the removal of the seal to start the CT terminal point without disturbing seal. Two holes found in meter Chambers. The cover of meter Chamber was opened very easily without breaking the glass. The check metering unit secondary box control cable came out through given slot but more space between cable and slots. Further action will be as per norms.”

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46. It needs to refer herein that there is no issue of authority having no jurisdiction, rather, the point has been raised that there is lack of foundational fact and no conclusion of unauthorized use of electricity as has been referred under Section 126(1) of the Act, 2003 and in addition thereto, the procedural irregularity is there.

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47. The jurisdictional fact is the core of argument which has been taken into consideration by the learned Single Judge.

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48. The jurisdictional foundational fact is a fact that must exist before a Court or other decision-making body and even have the authority to act. If that fact does not exist, the body simply have no power to make a decision.

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49. While on the other hand, a jurisdictional error occurs when a body that does have jurisdiction makes a decision that goes beyond its authority or misinterprets the law governing its power. Meaning thereby, the jurisdictional foundational fact is about whether the body can act while the jurisdictional error is about whether the body should act in specific way.

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50. According to the learned counsel for the appellant, there is lack of jurisdictional foundational fact, since, no conclusion has been arrived at by the inspecting team while conducting the inspection in exercise of power conferred under Section 126(1) of the Act, 2003. The said inspection has never been objected, even though, the same was made in presence of the representative of the consumer who has put his signature, as would be evident from the fact of the inspection report as available at running page-103 of memo of appeal.

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51. The issue of conclusion of unauthorized use of electricity cannot be said to be a ground on the basis of inspection conducted and conclusion which has been arrived, as would be evident from the quoted part hereinabove, wherein, the inspecting team has found the irregularities based upon that, the provisional assessment has been made by coming to the conclusion that there is unauthorized use of electricity, thereafter, the FIR has also been instituted by making a case of suspected theft.

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52. Therefore, this Court is of the view, after going through the

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conclusion part of the inspection report, that it is not a case where the foundational fact is not available for reaching to the conclusion of use of unauthorized electricity.

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53. So far as the argument which has been advanced that the procedure has not been followed as provided under the Supply Code, 2015 as under Regulation-11. But, before dealing with the procedure laid down under Supply Code, the relevant provision as contained therein needs to be referred as under:-

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“ A11: Theft and Unauthorised Use of Electricity

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Theft of Electricity

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11.1 Whenever a case of theft of energy is detected, the Authorised Officer shall carry out assessment, in accordance with the procedure as

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laid down in the sections below:

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Procedure for booking a case of theft of electricity

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11.2 The Distribution Licensee shall publish the list of the Authorised Officers prominently in all the Offices and the Photo Identity Card issued

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to such officers shall indicate so.

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11.3 An Authorised Officer, suo motu or on receipt of reliable information regarding theft of electricity shall promptly conduct inspection of such premises.

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11.4 The inspection team of the Distribution Licensee or supplier, headed by such Authorised Officer shall carry along with them their Photo Identity Cards. Photo Identity Card should be shown to the consumer/consumer representative before entering the premises. Photo Identity Card of the Authorised Officer shall clearly indicate that he has been nominated as Authorised Officer as per provisions of Section 135 of

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the Act.

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11.5 The Authorised Officer shall prepare a report

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giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, artificial means adopted for theft of energy).

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11.6 The report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report.

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11.7 No case for theft shall be booked only on account of seals on the meter missing or tampered or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.

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11.8 In case sufficient evidence is found to establish direct theft of electricity, licensee or Supplier as per Section 135 sub-clause (1A) of the

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Act shall disconnect the supply and seize all material evidence including wires/cables, meter, service line etc., from the premises and shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within 24 hours from the time of such disconnection. The Authorised Officer of the Distribution Licensee or Supplier shall within 2 days from date of inspection, file a case against

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the consumer in designated Special Court as per the provisions of Section 135 of the Act.

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11.9 The Authorised Officer shall assess the energy consumption as per the assessment formula given in Annexure 19 to these Regulations, for the entire period during which such theft of electricity has taken place. If, however, the period during which such theft of electricity has taken place cannot be ascertained, such period shall be limited to 12 months immediately preceding the date of inspection. The period of assessment may be arrived at after taking into consideration the following guidelines

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or any combination thereof or any other evidence which may be provided by the consumer:

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(a) Actual period from the date of commencement of supply to the date of detection of theft;

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(b) Actual period from the date of replacement of component of metering system in which the evidence is detected to the date of detection of theft;

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(c) Actual period from the date of previous checking of installation to date of detection of theft;

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(d) Meter Reading Instrument (MRI) data or Remote Meter Reading data should be considered wherever available.

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11.10 After establishing the duration period of theft, the Authorised Officer shall prepare an assessment order on applicable tariff as per the

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Electricity (Amendment) Act, 2007 and any subsequent amendments, and serve on the person under proper receipt.

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11.11 In case of a regular metered connection, where a case of theft of electricity is detected, units allowed to be recorded in the meter for

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which bills have been raised by the Distribution Licensee to the person during the period, for which the assessment is made, shall be duly credited to the consumer.

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11.12 In case of suspected theft, the Authorised Officer shall remove the old meter under a seizure memo and seal it in the presence of the consumer or his authorised representative and the Authorised Officer and the consumer have to sign on the seal borne on the meter. The Distribution Licensee or supplier shall continue the supply to the consumer with a new meter. The old meter shall be tested in the presence of the consumer and the Authorised Officer at the Distribution Licensee’s testing lab which shall give a test report, in writing, which along with photographs/video graphs shall constitute evidence thereof.

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The Authorised Officer shall record reasons to suspect theft in the premises in his report:

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Provided that if consumer insists, the testing of the meter will be carried out at a third party facility approved by the Commission.

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11.13 The report shall be signed by the Authorised Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his authorized representative to either accept or give a receipt, a copy of the inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed Post on the day or the next day of the inspection: Provided that in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within three days and connection shall be restored through original meter. 11.14 After detailed examination of the evidence and the consumption pattern of the consumer, if the Distribution Licensee or supplier is convinced that a prima-facie case is made out for the abstraction, consumption or use of electricity dishonestly against the consumer, the Distribution Licensee or supplier shall, within 7 days of inspection, serve a provisional assessment order assessed as per clause 11.24 of these Regulations along with show cause notice to the consumer, giving reasons, as to why a case of theft should not be booked against such consumer giving full details for arriving at such decision and points on which reply has to be submitted. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.

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11.15 In case as show-cause notice is not served

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even after 30 days from date of inspection by the Distribution Licensee or supplier, the case of suspected theft shall be considered as dropped and no further action can be initiated against the consumer.”

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54. It is evident from the provision as contained under Regulation-11 that the same also deals with the issue of unauthorized use of electricity and the theft of electricity.

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55. Regulation-11.14 speaks about the case of suspected theft, the said provision does not stipulate and is not putting restriction upon the authorized officer not to conduct an inspection for the purpose of issuance of provisional assessment in exercise of power conferred under Section 126(1) of the Act, 2003, which cannot be in view of the provision of the Act, 2003.

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56. The proceeding since is to go parallel if initiated under Section 126(1) and culminated under Section 126(5) and the FIR instituted under Section 135 of the Act, 2003.

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57. In view of the provision of Section 126(5) and on the basis of final assessment if the amount has been paid or depending upon the outcome of the criminal case, the civil liability is to be determined in view of the provision of Section 154(5) and (6) of the Act, 2003.

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58. But we are not dealing here with the issue of civil liability rather, the subject matter of the present lis is, as to whether the writ petition ought to have entertained on the basis of nonavailability of foundational fact and the procedural irregularity

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without invoking the jurisdiction conferred under Section 127 of the Act, 2003 to the competent authority.

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59. Since the law is well settled that the moment, the proceeding under Section 126 has been initiated then the same is to be given its logical end, the logical end would be by passing an order by the competent authority in view of the provision of Section 127 if preferred after the final assessment made under Section 126(5) of the Act, 2003. It is only thereafter; the jurisdiction conferred to this Court under Article 226 of the Constitution of India is to be invoked.

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60. However, as has been referred hereinabove that the provisional assessment made under Section 126(1) can also be challenged before the writ court if the authorities are having no jurisdiction in conducting inspection or there is violation of principle of natural justice but no such case has been made out by the writ petitioner to maintain the writ petition under Article 226 of the Constitution of India by taking the ground either of the violation of principle of natural justice or the jurisdictional error, i.e., the authority who had conducted the inspection having no authority, rather, the ground has been made out that there is lack of foundational fact by not arriving to the conclusion of unauthorized use of electricity. But, as has been referred hereinabove, based upon the conclusion part of the provisional assessment dated 29.09.2017, that the conclusion is there of unauthorized use of electricity and moreover, the

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said inspection was conducted in presence of the consumer representative who has put his signature without any protest.

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61. Therefore, it is not a case where either the jurisdictional error is available or the principle of natural justice has been taken to be violated on behalf of the writ petitioner, rather, the legal aspect as has been settled that once the proceeding has been imitated under Section 126(1), an objection is required to be filed by the consumer in view of the provision of Section 126(3) of the Act, 2003 but even the objection has not been filed and directly the writ petition has been filed which has been entertained without asking the party to file an appeal under Section 127 of the Act, 2003 so as to the proceeding may come to its logical end.

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62. Learned counsel appearing for the writ petitioner has submitted that the authority is required to proceed strictly in accordance with law, i.e., as per the process as provided under the statute and to strengthen his argument, he has referred the judgments, i.e., Hukam Chand Shyam Lal Vrs. Union of India & Ors., reported in (1976) 2 SCC 128 , Sanwarmal Kejriwal Vrs. Vishwa Cooperative Housing Society Ltd. & Ors., reported in (1990) 2 SCC 288 , Shrisht Dhawan (Smt) Vrs. M/s Shaw Brothers, reported in (1992) 1 SCC 534.

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63. There is no dispute about the said legal position that a proceeding is to be initiated by the competent authority on the basis of conferment of power under the statute as per the

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process stipulated in the Act.

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64. But herein which process has not been followed, there is no pleading to that effect even the same has not been taken into consideration by the learned Single Judge, save and except, the finding has been given that it is without jurisdiction and illegal as per paragraph-7 of the impugned judgment.

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65. This Court has gone through the judgment passed by the learned Single Judge in order to assess that what is the basis of the learned Single Judge in coming to the finding of availability of two grounds, i.e., it is without jurisdiction and illegal.

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66. The discussion has been made by the learned Single Judge in paragraph-14, wherein, it has been observed that “what the authorized officer has found and what is his opinion must be reduced in writing in the inspection report. It is not like this; that it can be inferred from the inspection report that theft of electricity has occurred and therefore supply line disconnected and a First Information Report lodged. De hors the observations in the inspection report, if a First Information Report is lodged, it would not confer powers and jurisdiction upon the authorized officer to make an order of provisional assessment. This assumes significance also for the reason that the authorized officer who has passed provisional assessment order may not be the one who has carried out the inspection. Section 135 itself creates two separate class of officers of the licensee and the supplier. The officers of the licensee or

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supplier, as the case may be, who may disconnect the supply of electricity under sub-section (1-A) are those who are authorized for this purpose by the Appropriate Commission (first proviso), whereas officers of the licensee and the supplier who may enter, inspect, break-open, search any place or premises are those who are authorized in this behalf by the State Government (sub-section 2).”

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67. It has further been observed at paragraph-15 of the impugned judgment that “the inspection report and the inspection report alone which must record the jurisdictional facts so as to clothe the authorized officer with powers and jurisdiction to pass a provisional assessment order.”

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68. The learned Single Judge has passed the judgment on the basis of the said two issues, i.e., the opinion has not been reduced in writing in the inspection report and the reference of jurisdictional fact in the inspection report.

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69. But, we on consideration of the inspection report particularly the conclusion part as has been referred hereinabove, are of the view that the inspection team has taken note of entire aspects of the matter regarding the issue of unauthorized use of electricity by making interference with the meter by insertion of gadget or even by tampering and as has been referred under Section 126(1), the inspection team has come to the conclusion based upon tampering in meter that there is unauthorized use of electricity.

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70. The same according to our considered view is the conclusion arrived at by the inspection team with respect to the issue of unauthorized use of electricity, hence, what has been argued by defending the judgment passed by the learned Single Judge that there is lack of foundational fact, which according to our considered view, in view of the conclusion part of the inspection team having been signed by the representative of the consumer, is having no force.

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71. The learned Single Judge has considered regarding the applicability of Regulation 11 where the reference of theft and unauthorized use of electricity has been made.

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72. Regulation 11.1 pertains to whenever a case of theft of energy is detected and the authorized officer shall carry out assessment; Regulation 11.2 pertains to publication of list of authorized officers; Regulation 11.3 pertains to the issue of information regarding theft of electricity; Regulation 11.4 pertains to the inspection team of the distribution licensee or supplier, headed by such authorized office shall carry along with them their photo identity cards. Photo copy should be shown to the consumer/consumer representative; Regulation 11.5 pertains to preparation of report giving details such as connected load, condition of meter seals, working of meter and mention and irregularity noticed (such as tampered meter, artificial means adopted for theft of energy), which led the learned Single Judge in coming to the conclusion that the

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44 - LPA No.648 of 2018

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procedure as stipulated under the aforesaid Regulation has not been followed.

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73. The issue of the inspection report of inspecting team having been signed by the representative of the consumer is without any objection and the same has been prepared based upon that the notice having been issued to the consumer but the learned Single Judge has also gone into the premise by intermingling the issue of ‘theft and unauthorized use of electricity’, which is contrary to the Scheme of the Act, 2003.

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Conclusion

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74. This Court, in view of the discussion made hereinabove and also in view of the fact that there is no jurisdictional error or it is also not the case of lack of foundational fact as has been discussed hereinabove, hence, is of the view that the impugned judgment passed by the learned Single Judge is without consideration of the Scheme of the Act, 2003 regarding insertion of the provision of Section 126 and Section 127 of the Act, 2003 and has entertained the writ petition without relegating the party to approach the appellate authority in view of the provision as provided under Section 127 of the Act, 2003. 75. This Court, therefore, is of the view that the impugned judgment passed by the learned Single Judge needs to be interfered with.

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76. Accordingly, the impugned judgment dated 05.09.2018 passed by the learned Single Judge in W.P.(C) No.6054 of 2017

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