Gauhati High Court
Page No.# 1/16 vs Assam Power Distribution Company Ltd. ... on 13 October, 2025
Page No.# 1/16
GAHC010084932019
2025:GAU-AS:13691
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2608/2019
TRIBENI METALLOYS PVT. LTD.
A COMPANY DULY INCORPORATED UNDER THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT 4TH FLOOR, SS COMPLEX, SJ ROAD, ATHGAON,
GUWAHATI- 01 HAVING ITS INDUSTRY/FACTORY AT SILA INDUSTRIAL
COMPLEX-II, CHANGSARI, GUWAHATI- 01, KAMRUP, ASSAM
VERSUS
ASSAM POWER DISTRIBUTION COMPANY LTD. AND 2 ORS
A GOVT OF ASSAM UNDERTAKING DULY INCORPORATED UNDER THE
COMPANIES ACT, 1956 HAVING ITS OFFICE AT BIJULE BHAWAN, PALTAN
BAZAR, GUWAHATI- 781001, DULY REP. BY ITS CHAIRMAN CUM
MANAGING DIRECTOR
2:THE CHIEF EXECUTIVE OFFICER
GUWAHATI ELECTRICAL CIRCLE-II
APDCL
AMINGAON
ASSAM
3:THE ASSTT GM
T AND C DIVISION
GEC-II
APDCL
AMINGAON
ASSA
Advocate for the Petitioner : MR. S K KEJRIWAL, MRS S KEJRIWAL
Advocate for the Respondent : SC, APDCL,
Page No.# 2/16 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY JUDGMENT & ORDER (CAV) Date : 13-10-2025
1. Heard Mr. D.K. Mishra, learned senior counsel assisted by Mr. S.K. Kejriwal, learned counsel for the petitioner. Also heard Mr. K.P. Pathak, learned standing counsel appearing for the APDCL
2. By way of the present writ petition, the petitioner has assailed the legality and validity of the inspection and seizure report, both dated April 11, 2019, whereby the electricity meter and the CT PT set connected to the petitioner's premises were seized, and the power supply was disconnected. The further challenge is made to the assessment bill dated 12.04.2019 and the FIR dated 12.04.2019, which alleges the breakage and tampering of a few seals, thereby implicating the petitioner in the theft of electricity.
3. The petitioner has invoked writ jurisdiction, challenging the initiation of proceedings and the provisional assessment primarily on the grounds that the inspection report does not disclose any prima facie material of theft of electricity; therefore, the inspection report is liable to be interfered with. The second contention is that in case of theft, the proceedings prescribed under section 135 of the Electricity Act, 2003 (hereinafter referred to as Act, 2003), are required to be followed, and initiation of proceedings under section 126 is Page No.# 3/16 wholly without jurisdiction.
4. The respondent Assam Power Distribution Company Limited (hereinafter referred to as APDCL) has raised a preliminary objection as to the maintainability of the present writ petition for having an alternative efficacious remedy under Section 127 of the Act, 2003. Such an objection is raised primarily in reference to a decision rendered by a Coordinate Bench in Shiv Alloys Steel Vs. Assam Power Distribution Company Ltd and Ors reported in (2021) 4 GLR 558, and the decision of the Division Bench affirming such determination in Writ Appeal No.286/2021 (Shiv Alloys Steel Vs. Assam Power Distribution Company Ltd and Ors).
5. Before delving into the arguments advanced by the learned counsel for the parties, let this court first record, in brief, the essential facts of the case as pleaded.
6. On 11.04.2019, APDCL officials inspected the meter in the industrial premises of the petitioner. Due to allegations that the meter and CT PT set had been tampered with, the meter and CT PT were seized, and the power supply to the premises was disconnected. The petitioner immediately filed the writ petition; an interim order was passed on 12.04.2019 directing the APDCL to restore the electricity supply. On the same date, i.e., 12.04.2019, a provisional assessment bill was served upon the petitioner. The APDCL authority filed an interlocutory application in the writ petition registered as I.A(C) No. 1445/2019 for vacation, alteration, or modification of the order Page No.# 4/16 dated 12.04.2019; however, this court dismissed the Interlocutory application for the reason that the matter requires adjudication at the stage of final hearing. Against such an order, the APDCL preferred a Writ Appeal registered as WA No.167/2019; however, the Writ Appellate court, under its judgment and order dated 07.08.2019, refused to interfere with the interim order dated 12.04.2019 and requested the Single Bench to dispose of the writ petition on merit. In the meantime, the respondent APDCL has filed an affidavit, and the matter is being heard accordingly by this court.
7. According to Mr. Mishra, learned senior counsel, the scheme of the Electricity Act, 2003, makes a distinction between assessment for unauthorised use of electricity under section 126, which is a civil liability and the offence of theft of electricity under section 135, which is penal in nature. Referring to the judgment of the Hon'ble Apex Court in Southern Electricity Supply Company of Orissa Ltd. vs. Sitaram Rice Mills reported in 2012 2 SCC 108, Mr. Mishra argues that the unauthorised use of electricity under section 126 of the Electricity Act and theft of electricity covered by section 135 are different provisions and there is no commonality between the two provisions.
8. It is the further contention of Mr. Mishra that in the absence of any provisions in the Act, 2003, for making provisional and/or final assessment in case of theft of electricity, the provision under section 135(1-A) is to be followed for restoration of Page No.# 5/16 supply of electricity, when the same is disconnected upon detection of theft. Though section 50 of the Act, 2003 provides for recovery of electricity charges in case of disconnection of supply for non payment, however, it does not provide for any assessment of electricity charges for restoration of electricity supply disconnected due to theft of electricity under section 135(1-A) and therefore to remove such difficulty, Electricity (Removal of Difficulties) Order, 2005 (hereinafter referred to as Electricity Order'2005) was notified empowering the Electricity Regulatory Commission (ERC) to provide method of such assessment which has not been complied by the Assam Electricity Regulatory Commission and instead provided in the Supply Code that the assessment of electricity charges in such a case shall be same as in the case of assessment of unauthorized use of electricity, which is absolutely illegal and without jurisdiction. Therefore, according to him, the initiation of assessment under section 126 is wholly without jurisdiction when theft is alleged.
9. Referring to the subsequent determination made by the Hon'ble Apex Court in West Bengal State Electricity Distribution Company Ltd. vs. Orion Metals Private Limited reported in 2020 18 SCC 588, Mr. Mishra argues that in Orion Metal, a division bench consisting of two Hon'ble Apex judges obliterated the difference between the unauthorized use of electricity under section 126 of the 2003, Act and theft of electricity under section 135 of aforesaid Act, which was firmly settled by the Page No.# 6/16 three judges bench in Sitaram Rice Mills and therefore, according to Mr. Mishra, the binding principle shall be Sitaram Rice Mills and not Orion Metals. According to him the decision rendered in Orion Metals is not only in the teeth of the judgment rendered in Sitaram Rice Mills but is also contrary to the provisions contained in section 126 and 135 of the Act'2003, since the statute itself has differentiated the aforesaid two provisions of the Act'2003; like no abstraction is required in case of unauthorized use of electricity under section 126 and abstraction or pilferage of electricity is sine qua non under section 135 to constitute theft.
10. Mr. Mishra further contends that in case of any assessment under the Electricity Order 2005, for restoration of electricity disconnected on detection of theft of electricity, no appeal is provided and therefore, the petitioner cannot be made remediless since the appeal provided only under section 127 of the Act, 2003, is relatable to an assessment made under section 126 of the Act, 2003. Section 127 cannot be made into or be made an appellate provision when an assessment is made under section 135(1-A) of the Act, 2003.
11. In support, the learned senior counsel places reliance on the judgment of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1, Radha Krishan Industries Vs. State of Himachal Pradesh reported in (2021) 6 SCC 771, Himadri Steel Pvt. Ltd Vs. Jharkhand UrjaVikas Nigam reported in Page No.# 7/16 MANU/JH/0750/2018 and Carona Ltd. Vs. Parvathy Swaminathan reported in (2007) 8 SCC 559.
12. The primary ground of challenge to the the inspection report is that a bare reading of the Inspection Report as well as the seizure list in Format 16, do not make out a prima facie case of theft of electricity and as such the APDCL do not have jurisdiction and authority to disconnect the power supply to the Industrial premises of the petitioner or to make any assessment of charges required for resorting to the power supply under section 135(1)(A) of the act. Accordingly, it is contended that when the action of assessment is without jurisdiction, there shall not be a bar to entertain a writ petition.
13. While countering the reliance of APDCL on Shiv Alloys, it is contended by Mr. Mishra that, the very jurisdiction to assess unauthorized use of electricity under section 126 of the Act is derived from the inspection report and said requirement of inspection report is apparent in a very provision of the section 126 as well as clause 7.5.2 (f) and (g) of the Supply code and therefore, the finding of the Division Bench in Shiv Alloys, that section 126 of the Electricity Act does not speak of any inspection report cum observation report, is not based on the provision of law and therefore, such is a per incuriam decision. Regarding the conclusion of the Division Bench that there was no jurisdictional error in the provisional assessment made by the Assessing Officer, it is argued that the same is also incorrect, as the single bench in Shiv Alloys never held that Page No.# 8/16 there was no jurisdictional error. The learned senior counsel contends that the decision rendered in Shiv Alloys is contrary to the provisions contained in Section 126(1) and Clause 7.5.2(f)(n)(g), which make the inspection report mandatory. According to the learned senior counsel, the findings attributed to the learned Single Judge are also perverse. The determination of the Division Bench that it agrees with the decision of the learned Single Judge that there was no jurisdictional error is contrary to the findings rendered by the learned Single Judge in Shiv Alloys at paragraph No.26, wherein it was held that there was no pleadings showing that there was jurisdictional error while passing the provisional assessment order inasmuch as the learned Single Judge never held that there was no jurisdictional error as held by the Division Bench and therefore, the decision is per incurium.
14. Per contra, Mr K.P. Pathak, learned standing counsel, APDCL, submits that in Sitaram Rice Mills, the Hon'ble Apex Court emphasises that the provisions of the Act, 2003 must be purposively interpreted to give them a revenue focus and to prevent unauthorised use of electricity. Under the scheme of the Act, 2003, both the mechanisms, i.e., under section 126 and section 135, can coexist in a given set of facts.
15. According to the learned Counsel, under the Electricity Order, 2005 the Assam Electricity Regulatory Commission( for short AERC), has prescribed that procedure laid down in Supply code for assessment of electricity charges under section 126 of Page No.# 9/16 the Electricity Act, 2003 would also be applicable in cases of theft of Electricity and therefore, in absence of a challenge to such mandate incorporated by the AERC in the Supply Code, it cannot be said that assessment cannot be made under section 126 of the Act, 2003, when it is a case of theft.
16. According to him, when it is statutorily permitted to have an assessment made in terms of section 126 in a case of theft of electricity, the natural corollary is that against such an assessment, an appeal under section 127 shall lie.
17. According to him, it cannot be said that the determinations made in Sitaram Rice Mills and Orion Metals are conflicting; instead, in Sitaram Rice Mills, the issue dealt with was the expansion of the meaning of unauthorised use of electricity, and it was not relatable to theft of electricity.
18. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and also perused the materials available on record.
19. The primary controversy in the present case is whether, in cases where theft is alleged, assessment proceedings under Section 126 are permissible at all, or whether the matter must be exclusively dealt with under Section 135.
20. The statutory scheme of the Electricity Act, 2003, creates a clear demarcation between unauthorised use of electricity under section 126 and the offence of theft of electricity under section 135 of the Act, 2003. Section 126 provides for the assessment Page No.# 10/16 of charges where, on inspection, the Assessing Officer concludes that there has been unauthorised use of electricity. It is civil in nature, creating liability to pay assessment charges. Section 135 establishes a panel offence of theft of electricity, punishable with imprisonment and fine and empowers the licensee to disconnect the supply and lodge a prosecution.
21. After scrutinising the ratio laid down in Sita Ram Rice Mills and Orion Metals, this court is of the opinion that it is now well settled that Section 126 is a complete code in itself, providing for civil liability. The scope of unauthorised use is broad and encompasses the consumption of electricity in any manner not permitted under the law, contract, or conditions of supply. It is equally well settled that section 126 does not require mens rea; it is based on unauthorised consumption irrespective of intention. Section 135, on the other hand, is a panel provision that requires dishonest abstraction or tampering, which attracts prosecution.
22. It is also the opinion of this court that assessment under section 126 of the Act, 2003, and prosecution under section 135 are not mutually exclusive but complementary. Section 126 imposes civil liability, while Section 135 addresses panel consequences. In the opinion of this court, both proceedings can run concurrently without overlap or conflict. These two provisions, though distinct, are not mutually destructive; they are to be read in harmony. Such reconciliation ensures that the purpose of the act is achieved, i.e., the recovery of financial loss to the Page No.# 11/16 licensee and the deterrence of dishonest abstraction.
23. Section 135, while addressing the theft of electricity, empowers the disconnection of electricity upon detection of theft under Section 135(1-A) and criminal prosecution. The special court dealing with the trial of an accusation of theft of electricity under section 154 (5) & (6) is vested with jurisdiction to determine civil liability. Therefore, such power can only be exercised after conviction in the criminal trial.
24. The Electricity Order 2005 mandates the ERCs to establish a procedure for incorporating into the Supply Code the determination of such charges payable by the party pending a decision by the appropriate Court.
25. Such a mandate leaves no room for doubt in the Court's mind that a procedure is to be laid down in the Electricity Code for assessing electricity charges pending the determination of civil liability by a special Court under Section 154 of the Act, 2003, in the prosecution of theft of electricity. Such a prescription nowhere mandates or bars the commission from adopting the procedure of assessing electricity charges under Section 126 of the Act, 2003, so far as it relates to the method for determining such charges. There is no mandate for laying down a separate procedure in exclusion of the procedure under Section 126 of the Act, 2003.
26. In the state of Assam, in compliance with such a mandate of the Order, 2005, the Assam Electricity Regulatory Commission Page No.# 12/16 has admittedly notified in the Supply Code that the procedure under Section 126 of the Act, 2003, shall be applicable for the determination of charges payable by the party alleged to have committed theft of electricity, pending determination by the appropriate Court. Above that, such a prescription, made by the AERC, is not under challenge in the present writ petition. That being the position, in the considered opinion of this court, the respondents are within their competence and jurisdiction to proceed under Section 126 of the Act, 2003, to assess the electricity charges arising from the alleged theft of electricity, which has already been done in this case.
27. This Court is also in agreement with the argument of the respondents that when the procedure for assessment is under Section 126 of the Act, 2003, the natural corollary is that an aggrieved party shall have the right to approach the appellate forum under Section 127 of the Act, 2003, against such an assessment made under Section 126 of the Act, 2003 arising out of alleged theft of electricity.
28. Coming to the arguments of the petitioner, on the correctness of the determination made in Orion Metal and Shiv Alloys, in the considered opinion of this Court, the determination made in Orion Metal is conclusive in nature.
29. In Sitaram Rice Mills, the issue before the Hon'ble Apex Court was whether consumption in excess of sanctioned load came within the purview of explanation B(iv) of Section 126 of the Act, 2003 and did not decide the issue as to whether, in Page No.# 13/16 case of an alleged theft, the assessment can be made under Section 126 of the Act, 2003. It is correct that in Sitaram Rice Mills, it was held that both Section 126 and 135 of the Act, 2003 operate in different fields i.e. Section 126 is in the field of determination of civil liability and in the case of Section 135, it is criminal liability. There is no specific finding that the assessment procedure in both circumstances shall be entirely different. That being the position, the argument advanced by Mr. Mishra, learned Senior Counsel in this regard, finds no favour from this Court. It is also the opinion of this Court that the Hon'ble Apex Court did not deliver Orion Metal in ignorance of Sitaram Rice Mills; instead, the said judgment was discussed in Orion Metal.
30. In Shiv Alloys Steel, the Coordinate Bench raised an issued whether provisional assessment by the Assessing Officer against the act of indulging in (unauthorized use of electricity) after an inspection of any place or premises of a consumer and the final assessment of the electricity charges payable by such consumer under section 126(3) of the Act, 2003 is restricted only to "unauthorized use of electricity", where there is no allegation of theft of electricity as defined under section 135 of the Act, 2003. The said issue was answered in the negative by holding that section 126 is not restricted only to "unauthorised use of electricity simpliciter but includes such unauthorised use of electricity when there is an allegation of theft of electricity defined under section 135 of the Act, 2003. It was further held Page No.# 14/16 that Section 127 covers, under its sweep, the Appellate Authority for any final order of assessment, including the authorised use of electricity with allegations of theft of electricity. Having held so, the learned Coordinate Bench dismissed the writ petition on the ground that the same is not maintainable as there is a specific alternative remedy i.e., an appeal under section 127 of the Act, 2003. The judgment rendered in Shiv Alloys Steel by the coordinate Bench and affirmed by the Division Bench is binding upon this Court. This Court also records its total concurrence with the determination made in Shiv Alloys.
31. Now coming to the jurisdictional issue urged on behalf of the petitioner, the case of the petitioner is that absence of prima facie case and absence of any material having mens rea in the inspection report, the assumption of jurisdiction, under Section 126 of the Act, 2003, is invalid and that once the theft is alleged, proceeding under Section 135 of the Act, 2003 shall lie and not Section 126 of the Act, 2003. The Second part has already been answered in the foregoing paragraphs.
32. The law is by now well settled that a jurisdictional fact is a fact which must exist before a statutory authority can assume jurisdiction. If such a fact does not exist, the authority acts without jurisdiction. Existence of jurisdictional fact is open to judicial review, whereas the correctness or sufficiency of fact, once jurisdiction is assumed, is a matter of statutory authority and forums.
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33. In the case at hand, a review of the inspection report reveals that a physical inspection was conducted, and prima facie evidence suggesting dishonest abstraction was collected. Applied in the present case, and for the reasons recorded hereinabove, the jurisdictional fact for proceeding with and assuming jurisdiction under Section 126 of the Act, 2003, is already present in the inspection report. Since such material exists on record, however, contestable, the jurisdiction is validly assumed. Thus, the arguments on the merit of the inspection report and the evidence collected, may be a subject matter of determination either before the assessing authority under Section 126 of the Act, 2003, or before the Appellate Authority under Section 127 of the Act, 2003, more particularly, for the reason as recorded hereinabove that the jurisdictional facts are present in the case clothing the Assessing Officer/appellate authority with the jurisdiction.
34. Therefore, in the totality of the matter, this Court is of the unhesitant opinion that the petitioner is having an efficacious alternative remedy under Sections 127 of the Act, 2003, so far the same relates to the impugned assessment more particularly, when the AERC has already notified in the Code and in terms of the Electricity (Removal) of Difficulty, 2005, adopting the procedure prescribed under Section 126 of the Act, 2003, so far, the same relates to assessment of charges pending determination by the Special Court exercising its power under Section 154 of the Act, 2003.
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35. Accordingly, in the opinion of this Court, the present petition merits dismissal, reserving liberty to the petitioner to pursue the statutory appellate remedy. While parting with the record, it is made clear that the determination made herein shall not influence the authorities on the merit of the inspection report and the assessment made thereof.
JUDGE Comparing Assistant