Madhya Pradesh High Court
Etendtra Kumar Ghambhir vs Madhya Pradesh Madhya Ksetra Vidhyut ... on 9 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:23654
1 WP-6020-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
WRIT PETITION No. 6020 of 2011
ETENDTRA KUMAR GHAMBHIR
Versus
MADHYA PRADESH MADHYA KSETRA VIDHYUT VITRAN CO.
LTD.
Reserved for order on : 09/09/2025
Order delivered on : 27/09/2025
Appearance:
Shri Gaurav Mishra Advocate appeared for the petitioner.
Shri Narrottam Sharma Advocate appeared for the respondents.
ORDER
(Delivered on this day of 27/09/2025)
1. With the consent of learned counsel for the rival parties, matter is heard finally.
2. The instant writ petition filed under Article 226 of Constitution of India challenges the provisional assessment order dated 16/05/2011 passed by the respondent No. 2, whereby, finding tampering in the electricity meter installed in the premises of the petitioner and consequently unauthorized use of energy, provisional demand of Rs. 36, 348/- has been raised against the petitioner.
3. The solitary argument raised by learned counsel for the petitioner is that in the case of allegation of tampering of electricity meter, section 135 of Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 2 WP-6020-2011 Electricity Act, 2003 (for brevity Act of 2003) pertaining to the theft of electricity is applicable. The matter is required to be referred to the Special Court constituted under section 153 of Act of 2003 and it is only for the Special Court to determine the civil liability if any accruing on the petitioner for the allegation of theft of electricity in terms of section 154 (5) of Act of 2003. In support of his arguments, learned counsel for the petitioner placed reliance upon the judgment of co-ordinate Bench of this Court in the case of Sangita vs. State of M.P. reported in 2009 (1) MPLJ 366 to contend that scope of section 126 of Act of 2003 as well as section 135 of Act of 2003 have been considered and explained. Learned counsel for the petitioner submits that for "unauthorized use of energy" provisions of section 126 are attracted, whereas, "theft of electricity" provisions of section 135 of Act of 2003 are attracted. The aforesaid judgment of this Court has been followed by the coordinate Bench of this Court in W.P. No. 11729/2023 ( Naveen Kumar Jain vs. Madhya Pradesh Madhya Kshetra Vidyut Vikas Company Limited) and vide order dated 24/02/2025, the said writ petition was allowed granting liberty to the respondents to move appropriate application before the competent court of jurisdiction as provided under section 154 of Act of 2003. Learned counsel for the petitioner thus submits that in the instant case, the provisional assessment / demand notice dated 15/05/2011 for allegation of theft of electricity is without jurisdiction in view of the aforesaid enunciation of law by this Court and accordingly, he prays that instant petition deserves to be allowed.
4. On the other hand, learned counsel for the respondents submits that bare perusal of impugned provisional assessment order dated 16/05/2011 would Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 3 WP-6020-2011 reveal that the same has been issued under section 126 of Act of 2003. The said provisional assessment cannot be said to be issued under section 135 of Act of 2003 as the scheme of section 135 of Act of 2003 does not provide for any provisional /final assessment by departmental authority. He further submits that the petitioner since had not raised any objection against the impugned provisional assessment order dated 16/05/2011 within the time limit prescribed under sub section 4 of section 126 of Act of 2003, the same has attained finality and, therefore, the petitioner is liable to make said payment. He further submits that no proceedings under section 135 of Act of 2003 has been invoked against the petitioner till date.
5. No other point has been pressed by learned counsel for the parties.
6. Heard learned counsel for the rival parties and perused the material available on record.
7. The issue that arises for consideration before this Court is as to whether even in the case of tampering of meter or theft of electricity essentially the civil liability is to be determined only by the Special Court constituted under section 153 of Act of 2003 or it is open for the departmental authority/assessing officer to exercise the power under section 126 of Act of 2003 to assess loss of energy and pass assessment order irrespective of invoking of procedure as contemplated under section 135 & 154 of Act of 2003?
8. The judgments of this Court in the case of Sangita (supra) & The Hotel Adityaz Limited Vs Madhya Pradesh Kshetra Vidyut Vitran Co. Ltd. reported in 2014 (3) MPLJ 552 as followed in the case of Naveen Kumar Jain (supra) carves distinction between the scope of 126 and 135 of Act of 2003 and holds that in case of "unauthorized use of energy", the provisions of section 126 are attracted, Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 4 WP-6020-2011 whereas, in the case of "theft" or dishonest use of electricity including tampering of meter, etc, as enumerated in section 135 (1) (a) (b) (c) (d) & (e), the provisions of section 135 are attracted and, therefore, in the case of theft of electricity, it is not open for the departmental authority/assessing officer to pass an order of provisional/final assessment of the civil liability.
9. The relevant para of judgment of this Court in the case of Sangita (supra) reads as under :-
"9. The Explanation to section 126 of the said Act defines the expression 'unauthorized use of electricity and the definition includes four categories a specified in the sub-para (b) to the Explanation. It has been defined to mean the usage of electricity
(i) by any artificial means, (ii) by means not authorized by the concerned person or authority of licensee, (iii) through a tampered meter, and (iv) for the purpose other than for which the usage of electricity was authorized Thus, section 126 can apply only in these cases since the same is confined to 'unauthorized use of electricity'. The expression 'theft' has not been used under section 126 of the said Act of 2003.
10. The expression 'theft' has been used in section 135 of the said Act. Thus, in the same enactment, these two expressions electricity' and 'theft' have been used separately and, thus, must have their own connotations. They cannot be said to be substitute for one or the other.
11. If the contention of learned counsel for the petitioners was to be accepted, then theft has to be included as part of 'unauthorised use of electricity However, sub-para (b) of the Explanation to section 126 defines the expression 'unauthorised use of electricity' to mean only four categories of acts as defined therein.
12. There is no doubt that some of the expressions used in section 126 of the said Act also appear in section 135 thereof. An illustration of this was given in respect of tampering of a meter. However, section 126 uses the expression to include the usage of electricity through a tampered meter, while the expression used in section 135 is 'tampers a meter'. If the definitions given of theft of electricity under section 135 are considered, they are specific in nature. There is dual requirement. Firstly, the act should be done dishonestly. Secondly, it should form part of one of the acts specified in sub-paras (a) to (c) of sub-section (1) of section 135 of the said Act. Thus, specific acts have been given like tapping through overhead, underground or under water lines or cables, Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 5 WP-6020-2011 tampering of meter, damage or destruction of electric meters and apparatus, to interfere with the proper or accurate metering of electricity. An act to constitute theft of electricity must, thus, satisfy the aforesaid requirements.
13. I am unable to persuade myself to agree with the submission of learned counsel for the petitioners that section 126 of the said Act is all encompassing and includes theft of electricity which is only defined under section 135. There is no doubt that section 135 falls in Part XIV with the heading of "Offences and Penalties". However, a reading of sub-section (5) of section 154 would show that there is a specific provision made in respect of the procedure and power of the Special Court constituted under section 153 of the said Act. The aforesaid authorizes the Special Court to determine even the civil liability against the consumer or a person in terms of money for theft of energy as per the said sub-section. Thus, where cognizance is taken of the act under section 135 of the said provisions of section 126 of the said Act are concerned, they fall under the Act, even a Special Court is empowered to determine civil liability. Insofar as the Chapter dealing with 'Investigation and Enforcement'. Section 126 no doubt refers to an assessment but that assessment is only in respect of unauthorized use of electricity. The result of the aforesaid is that theft of electricity cannot be said is a part of section 126 of the electricity in the said Act of 2003. provision for assessment in case of theft of electricity in the said Act of 2003.
14. Unreported judgment dated 19-2-2008 cited by the learned counsel for the petitioners have no relevance in the present facts and circumstances of the case. If the contentions of the learned counsel for the petitioners was to be accepted then theft has to be included as part of 'unauthorized use of electricity. However, sub- para (b) of the Explanation of section 126 defines the expression "unauthorised use of electricity to mean only four categories of acts as defined therein. There is distinction between theft of electricity and interference with theft or works of licensee. Section 126 deals with assessment.
15. Learned counsel for the respondents rightly submitted that sections 126 and 138 of the Act are operating in different fields and the introduction of section 126 of the said Act is to deal with the cases of unauthorized use of electricity and not unauthorizedly interference with meter or work of licensee."
10. The relevant para of judgment of this Court in the case of The Hotel Adityaz Limited (supra) reads as under :-
"16. The case of Smt. Basanti Bai (supra) is recently considered by Supreme Court in Civil Appeal No. 4023/2014, Western Elect.Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 6 WP-6020-2011 Supp. Co. of Orissa vs. M/s Baba Baijnath Roller and Flour Ltd., decided on 26-3-2014. The Apex Court opined as under:-
"Section 26 is relevant only when there is any difference or a dispute arises in connection with correctness of a meter, in that case the matter shall be decided, upon being applied by either party, by an Electrical Inspector and in the opinion of the Inspector if it is found that the meter is defective, the Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months but if there is a question of fraud in tampering with the meter, in that case there is no question of applicability of section 26 of the said Act in such a matter. In two decisions of this Court in M. P. Electricity Board vs. Basantibai, 1988(1) SCC 23 and J.M.D. Alloys Ltd. vs. Bihar SEB 2003(5) SCC 226 it has been held that in cases of tampering or theft or raised falls outside the section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside." In the light of this judgment also, it is clear that section 26 of 1910 Act and section 126 of 2003 Act have no application in cases of dishonesty and electricity theft.
17. It is profitable to mention here that in Electricity Act 2003, section 126 finds place in Chapter Part XII with the heading "Investigation and Enforcement", whereas section 135 is in Part XIV under the heading "Offences and Penalties". Upon their plain reading, the marked differences in the contents of sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. It can be noticed that sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to "Offences and Penalties" and title of the section is "theft of electricity". The section opens with the words "whoever, dishonestly" does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorised in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub- sections (2) to (4) of the said section. Section 126 of the 2003 Act Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 7 WP-6020-2011 would be applicable to the 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 squarely fall within the expression "unauthorised use of electricity". This assessment/ proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in provisionally assess, to the best of his judgment, the electricity charges payable an "unauthorised use of electricity". Then the assessing officer shall such consumer, as well as pass a provisional assessment order in terms of section 126(2) of the 2003 Act. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. Thus, it would be clear that the expression "unauthorised use of electricity" under section 126 of the 2003 Act deals with cases of unauthorised use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under section 135 of the Act. Therefore, 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 unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of section 135 of the 2003 Act. This view is taken by Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108.
18. In the present case, it is apparent that the allegations against the petitioner fall within the ambit of section 135 of the Act. The opening words of section 135 are that "whoever, dishonestly does any or all of the acts specified under section 135 of the Act". Since the impugned orders are in the realm of section 135, section 126 Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 8 WP-6020-2011 of the Act has no application in the present case. Thus, reliance on section 26 of 1910 Act and section 126 of 2003 Act is misconceived. Apart from this, under section 135, there is no scope of preferring representation to respondents. Hence, decision on any such representation by Annexure R/11 dated 9-7-2011 is of no consequence. More so, when validity of this rejection is not called in question.
19. The Apex Court in Sri Seetaram Rice Mill (supra) has clarified the distinction between sections 126 and 135 of 2003 Act. In Part XV of 2003 Act, Special Courts are constituted. Section 153 deals with constitution of Special Courts. Section 154 envisages the procedure and power of Special Courts. Sub-section (5) of section 154 gives exclusive power to Special Court to determine the "civil liability" against 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 12 months preceding the date of detection of theft of energy or the exact period of theft if determined, whichever is less. The said Court needs to determine the amount of 'civil liability' for the purpose of its recovery. Sub-section (6) makes it clear that in the event amount so recovered is less than the determination, the excess amount can be recovered. If amount so recovered is more than the determination, it shall be refunded by the Board or licensee within fortnight. "Civil Liability" is defined in the Explanation appended to subsection (5) aforesaid. It reads as under:-
"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 το 139."
11. It is pertinent to mention here that exactly similar issue pertaining to scope of section 126 and 135 of Act of 2003 came up for consideration before the Apex Court in the case of West Bengal State Electricity Distribution Company Limited and Ors vs. Orion Metal Private Limited and Anr. reported in (2020) 18 SCC 588. Para 2.10 of the aforesaid judgment reads as under:-
"Before the High Court, it appears that respondents have also pleaded that the civil liability, if any, of the respondents can be determined only under sub-section (5) of Section 154 of the Act. While considering the scope of Sections 154, 135(1)(a) and 126 of the Act, the High Court has held that when a criminal complaint is Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 9 WP-6020-2011 lodged alleging theft of energy by the consumer and when supply of electricity is disconnected on account of such offence alleged, only in cases where restoration of supply is sought by the consumer, agreeing to deposit the assessed amount of un-metered consumption, provisional assessment can be made under Section 126 of the Act. The High Court has drawn a distinction to exercise power under Section 126(1) of the Act, in cases where consumer seeks restoration of supply after disconnection and in cases where restoration of supply is not sought for. The High Court has held that only in cases where restoration is sought after disconnection, authorities can resort to make assessment under Section 126(1) of the Act, otherwise, the civil liability can be determined by Special Court only by following the procedure under sub-section (5) of Section 154 of the Act."
12. The object of bringing legislation in the form of Act of 2003 and scope of section 126 and 135 of Act of 2003 have been considered by the Apex Court in the case of West Bengal State Electricity Distribution Company Limited (supra).
Paras 9 to 16 of the aforesaid judgment reads as under :-
"9. The relevant sections for the disposal of this appeal reads as under:
"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 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.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub- section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 10 WP-6020-2011 taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-
section (5).
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;
(b) "unauthorised use of electricity" means the usage of electricity -
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee;
or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized."
10. The procedure for 'theft of energy' is covered by Section 135 of the Act under Part IX. Section 135 of the Act reads as under:
"135. Theft of Electricity:- (1) Whoever, dishonestly,-
(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
(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
(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
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, 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 fine or with both:
Provided that in a case where the load abstracted, consumed, or used or Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654
11 WP-6020-2011 attempted abstraction or attempted consumption or attempted use -
(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 electricity for that period from any other source or generating station:
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 authorised shall disconnect the supply line of electricity:
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 disconnect:
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 within forty-eight hours of such deposit or payment;] (2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may -
(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;
(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;
(c) examine or seize any books of account or documents which in his opinion Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654
12 WP-6020-2011 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:
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. (4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
11.The procedure to be followed by the Special Court constituted under Section 153 of the Act is prescribed under Section 154 of the Act. Sub-sections (5) and (6) of Section 154 of the Act read as under:
"154. (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 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. (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."
12. A perusal of the aforesaid provisions and on giving a conjoint reading of the same, it appears to us that after an inspection of any place or any premises of any consumer, when Assessing Officer comes to a conclusion that the consumer is indulging in unauthorized use of electricity, the provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of the Act and such provisional assessment shall be served upon the person in occupation of the premises. After giving an opportunity to file objections to the provisional assessment, the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 13 WP-6020-2011 Assessing Officer is empowered to pass a final order of the assessment assessing the loss of energy, on account of unauthorized use of energy. The unauthorized use of electricity is defined under Section 126(6)(b) of the Act. It is clear from the aforesaid definition that unauthorized use of electricity means, the usage of electricity by any artificial means or by a means not authorized by the concerned person or authority or licensee; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorized; or for the premises or areas other than those for which the supply of electricity was authorized.
13. It is clear from the reading of Section 126 (6) (b)(iii) of the Act that instances of use of energy through a tampered meter is included in the definition of unauthorized use of electricity. If that is so, there is no reason, for excluding the power of the authorities for making assessment under Section 126(1) of the Act to assess the loss of energy, where electricity is used through a tampered meter. All instances of unauthorized use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act, will fall within the definition of unauthorized use of electricity. As per Section 135(1A) of the Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power supply immediately. Further, as per the third proviso to Section 135(1A) of the Act, the licensee or supplier, as the case may be, on deposit or payment of assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the power supply electricity within forty- eight(48) hours of deposit /payment of such amount. Thus, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. When a consumer deposits the assessed amount, the licensee or the supplier has to restore the power supply. The assessed amount referred to in the aforesaid proviso, relates to assessment which is contemplated under Section 126(1) of the Act only. There is apparent distinction between Section 126 and Section 135 of the Act. Section 126 forms part of the scheme which authorizes Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 14 WP-6020-2011 electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of "unauthorized use of electricity"
whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub-section (1) of Section 135 of Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil liability so determined 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, shall be refunded by the licensee or the concerned person, as the case may be. Merely because the Special Court is empowered to determine civil liability under Section 154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under Section 126 of the Act.
14. In Southern Electricity Supply Company of Orissa Limited v. Sri. Seetaram Rice Mill, reported in (2012)2 SCC 108, this Court has considered the scope of Explanation to Section 126(b) of 2003 Act. In the aforesaid case, as there was no allegation of theft, this Court has held consumption in excess of sanctioned/contracted load, comes within the meaning of unauthorized use of electricity as per Explanation (b)(iv) of Section 126 of Electricity Act, 2003. Drawing a distinction between Section 126 to that of Section 135 of the Act, paragraphs 29 and 61 of the aforesaid judgment read as under:-
"29. Thus, it would be clear that the expression "unauthorized use of electricity" under Section 126 of the 2003 Act deals with cases of unauthorized use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection by passing the installed meter, the case would fall under Section 135 of the Act. ... ... ... ...
61. Unauthorized use of electricity cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so as to cover cases Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654
15 WP-6020-2011 of violation of the terms and conditions of supply and the Regulations and provisions of the 2003 Act governing such supply. "Unauthorized use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and the provisions of the 2003 Act."
15. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorized use of energy by 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. The term "unauthorized use of energy"
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, when 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. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such cases for loss of energy, on account of unauthorized use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act.Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:23654
16 WP-6020-2011 emphasis supplied
16. For the aforesaid reasons, this civil appeal is allowed and the judgment and order dated 18.12.2017 passed by the High Court of Calcutta in F.M.A. No.520 of 2017 and the corrected order dated 07.02.2018, are set aside. No order as to costs."
13. The perusal of the conclusion drawn by the Apex Court in para 15 of judgment in the case of West Bengal State Electricity Distribution Company Limited (supra) would reveal that the term "unauthorized use of energy" in section 126 (1) of the Act of 2003 has been interpreted to be of wide connotation and it has been specifically held that the term "unauthorized use of energy" by tampering of meter shall include "theft" in such cases also apart from assessing the loss of energy under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established, for assessing the liability under Section 126(1) of the Act, strict proof is not required.
1 4 . In light of the foregoing analysis, and having due regard to the constitutional mandate enshrined in Article 141 of the Constitution of India, this Court is respectfully guided by the authoritative pronouncement of the Hon'ble Supreme Court in Suganthi Suresh Kumar V/s Jagdeeshan, AIR 2002 SC 681, wherein their Lordships unequivocally observed that"
"It is not only a matter of discipline for the High Courts in India, it Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 17 WP-6020-2011 is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India."
15. In this constitutional framework, while this Court holds the utmost respect for the learned coordinate bench decisions in Sangita (supra) and Hotel Adityaz Ltd.(supra) , which were subsequently followed in Naveen Kumar Kumar Jain (supra), it respectfully appears that these decisions, having been rendered by this High Court, must necessarily yield to the binding precedential value of the Apex Court's judgment in the West Bengal State Electricity Distribution Company Ltd. (supra), which is of superior authority and creates a binding precedent that this Court is bound to follow. Ergo, the constitutional obligation under Article 141 compel this Court to follow the legal position established by the Hon'ble Supreme Court i n West Bengal State Electricity Distribution Company Ltd. (supra) . Given that the decision in Sangita (supra) and Hotel Adityaz Ltd.(supra) predate the Apex Court's judgment in West Bengal State Electricity Distribution Company Ltd. (supra), while, acknowledging the learned exposition of the coordinate bench decisions with due deference, this Court is bound to adopt the authoritative legal framework as expounded by the Apex Court, thereby ensuring uniformity and consistency in the administration of justice as envisaged by the constitutional scheme.
16. Accordingly, the contention advanced on behalf of the petitioner that there cannot be determination of any civil liability by exercising powers conferred under section 126 of Act of 2003 in the case of tampering of meter and the matter is required to be referred to the competent court under section 153 of Act of 2003 Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23654 18 WP-6020-2011 being meritless in view of Apex Court judgment in the case of West Bengal State Electricity Distribution Company Limited (supra) deserves to be and is hereby rejected.
17. Accordingly, the instant writ petition sans merit and is hereby dismissed.
18. All interlocutory applications, is any, stand disposed of.
19. There shall be no order as to costs.
Certified copy as per rules.
(AMIT SETH) JUDGE Durgekar Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 9/27/2025 7:11:39 PM