Gauhati High Court
Page No.# 1/26 vs Assam Power Distribution Company ... on 21 August, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/26
GAHC010134982022
2025:GAU-AS:11180
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4976/2022
M/S CACHAR ALLOYS
HAVING ITS REGISTERED OFFICE- 122, M.S. ROAD, FANCY BAZAR,
GUWAHATI. PIN 781001. REPRESENTED BY ONE OF ITS PARTNER, SHRI
RAKESH KUMAR SURANA, SON OF LATE SURAJMAL SURANA, RESIDENT
OF SURAJKUNJ (KK), 12, M.S. ROAD, FANCY BAZAR, GUWAHATI- 781001.
KAMRUP(M), ASSAM.
VERSUS
ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 5 ORS
A GOVERNMENT OF ASSAM UNDERTAKEN COMPANY DULY
INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS HEAD
OFFICE AT BIJULEE BHAWAN, PALTANBAZAR, GUWAHATI- 781001,
REPRESENTED BY ITS MANAGING DIRECTOR.
2:CHIEF GENERAL MANAGER
(COMMERCIAL AND EE)
APDCL
5TH FLOOR
BIJULEE BHAWAN
PALTANBAZAR
GUWAHATI- 781001
ASSAM.
3:GENERAL MANAGER
SILCHAR ZONE
APDCL
SILCHAR-15
ASSAM.
4:SUB-DIVISIONAL ENGINEER
Page No.# 2/26
UDORBOND ELECTRICAL SUB-DIVISION
APDCL
UDORBOND
CACHAR.
5:ASST. GENERAL MANAGER
CACHAR IRCA
ASSAM POWER DISTRIBUTION COMPANY LIMITED
CACHAR ELECTRICAL CIRCLE
SILCHAR-15
ASSAM.
6:CHIEF EXECUTIVE OFFICER
CACHAR ELECTRICAL CIRCLE
APDCL
MEHERPUR
SILCHAR-18
CACHAR
ASSAM
For the petitioner : Mr. B. K. Das, Advocate
For the respondents : Mr. K. P. Pathak, SC, APDCL
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date : 21-08-2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. K. Das, the learned counsel appearing on behalf of the Petitioner and Mr. K. P. Pathak, the learned Standing counsel appearing on behalf of the Respondent Nos.1 to 6.
2. The petitioner herein has assailed the Inspection Report dated 01.10.2021, the seizure list dated 01.10.2021 and the FIR dated 08.12.2021.
Page No.# 3/26 The petitioner further has challenged the order dated 29.04.2022 passed by the learned Appellate Authority for Assam Power Distribution Company Limited (APDCL) as well as the order dated 15.06.2022 passed by the learned Appellate Authority for APDCL in Review Petition filed by the AGM, IRCA, Cachar against the order dated 29.04.2022. The petitioner further has sought for refund of the electricity bill amounting to Rs.76,45,218/-.
3. For deciding as to whether the petitioner herein is entitled to the reliefs as have been sought for in the present petition, this Court finds it pertinent to take note of the brief facts which led to the filing of the present writ petition.
MATERIAL FACTS:
4. The Petitioner herein is engaged in the business of manufacturing of M.S. ingots. For that purpose, the Petitioner had taken an electricity connection from the Respondent APDCL and the petitioner was allotted a Consumer No.152010060553 with a sanction load of 3400 KW. On 01.10.2021, an inspection was carried out in the factory premises of the petitioner. It is the claim of the petitioner that during the inspection carried out, the seals fixed on the meter and the 33KV CT-PT was found intact. However, certain items were seized from the premises of the petitioner without assigning any reason for such seizure, and thereupon, a seizure report dated 01.10.2021 was prepared by the inspection team and the petitioner alleged that the said seizure report was prepared without allowing any personnel of the petitioner to be present at the site to record objection and in absence of at least two local witnesses which is mandatory.
Page No.# 4/26
5. It is the further case of the petitioner that on 08.12.2021, a provisional assessment bill was provided to the petitioner for the period from 01.10.2020 to 30.09.2021 for an amount of Rs.76,45,218.55p. The petitioner was asked to submit objection within 15 days against the provisional bill. The said provisional assessment bill dated 08.12.2021 however was cancelled by a communication dated 09.12.2021 and the same was communicated through a letter issued by the Assistant GM, IRCA, Cachar Division. Another provisional assessment bill dated 08.12.2021 was forwarded to the Petitioner. On 08.12.2021, an FIR was filed by the Respondent APDCL alleging theft of electricity before the Udorbond Police Station.
6. The Petitioner has alleged that the Respondent APDCL further forced the petitioner to make the payment of an amount of Rs.76,45,218/- which the Petitioner duly paid on 10.12.2021 (under protest).
7. The Petitioner submitted its Objection against the provisional assessment bill dated 10.12.2021. The Respondent APDCL upon submission of the objection to the provisional assessment bill, carried out hearing on 21.12.2021 and a Speaking Order was passed on 29.12.2021 wherein it was mentioned that the petitioner had indulged in theft of electricity by tampering/interfering the meter system and should be booked under Section 135 of the Electricity Act, 2003 (for short, "the Act of 2003").
8. Being aggrieved, the petitioner preferred an Appeal against the Speaking Order dated 29.12.2021 before the Appellate Authority under Section 127 of the Act of 2003. The Appeal was registered as Appeal Page No.# 5/26 No.1/2022. The learned Appellate Authority vide an order dated 29.04.2022, disposed of the said Appeal, observing inter-alia that the petitioner had indulged in tampering of the seals fixed on the top cover of the CT-PT set with a malafide intention for tampering of the metering system after 16.07.2020. It was further opined that the petitioner was guilty for tampering of the seals of the metering system with a dishonest intention which is also an act of interference of the metering system for theft of energy, and thus, attracts penal action under Section 135(1) and 138 of the Act of 2003. The Appellate Authority further directed that in order to recover the loss occurred to the Respondent APDCL due to the suspected theft of energy committed by the petitioner, the assessment of the energy charge shall be made for a period of 12 months preceding from the date of the inspection on 01.10.2021 as per Section 126(6) of the Act of 2003. However, the Appellate Authority observed that there shall not be any assessment on the demand charge as no other unauthorized use of electricity was detected other than the meter tampering.
9. The Respondent APDCL preferred a review against the order dated 29.04.2022 passed by the Appellate Authority. The ground for review is relevant for the purpose of adjudication of the instant proceedings and more particularly taking into account the submissions made by the learned counsel appearing on behalf of the petitioner.
10. The ground of review so taken was that as the petitioner herein had indulged in unauthorized use of electricity by tampering the metering system, the Respondent APDCL lost on account of demand charge. It was further urged in the said review petition that the contract demand Page No.# 6/26 agreement was executed by the Respondent APDCL at 3350 KV (90% of the connected load), and as per record, the actual load connected to the system was 3198.92 KV. It was therefore urged that as the metering system was tampered, the meter may not show the actual demand, and therefore, the demand charge should be realized from the consumer as meter may not give the correct data. It is very pertinent to observe that the learned Appellate Authority rejected the review application thereby again confirming the order dated 29.04.2022.
11. Before proceeding further, this Court finds it very pertinent to take into account the implication of the order dated 29.04.2022 passed in the Appeal filed by the petitioner as well as the order dated 15.06.2022 passed in the review petition filed by the Respondent APDCL. The effect of the said orders in the opinion of this Court are that the Respondent APDCL was given a go-ahead to make assessment in terms with Section 126(6) of the Act of 2003 in respect to the unauthorized use of electricity, but the Respondent APDCL was not permitted to make any fresh assessment on the fixed demand charge which pertains to the connected load vis-a-vis the actual load connected.
12. Moving forward, it is seen that in pursuance to the order passed on 15.06.2022, a revised assessment was carried out and it was found that the petitioner's dues were only Rs.53,53,107.19p and as the petitioner had already deposited an amount of Rs.76,45,218/-, the amount of Rs.22,92,111/- was refundable to the petitioner. It is not disputed that the said amount was adjusted against the future bills of the petitioner.
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13. In the backdrop of the above, the petitioner therefore has filed the instant writ petition seeking the reliefs as above mentioned on 30.06.2022.
14. The record reveals that this Court issued notice and directed the respondents to file their response. The Respondent APDCL has filed an affidavit-in-opposition wherein the Respondent APDCL justified the inspection so carried out, the seizure so made, the issuance of the provisional assessment bill, the speaking order dated 29.12.2021. It was also mentioned that pursuant to the orders passed by the Appellate Authority dated 29.04.2022 and 15.06.2022, they have also complied with the same. It is the specific stand taken by the Respondent APDCL that the inspection as well as the seizure so carried was following the mandate in terms with the Assam Electricity Supply Code and the petitioner who is guilty of tampering of the meter with a dishonest intention ought not to be permitted to seek relief(s) from this Court in exercise of discretionary and equitable jurisdiction.
CONTENTIONS OF THE LEARNED COUNSELS FOR THE PARTIES:
15. Mr. B. K. Das, the learned counsel appearing on behalf of the petitioner submitted that the inspection which was done on 01.10.2021 and the seizure so made was not following the mandate of the AERC Electricity Supply Code in as much as there were no two independent witnesses when the said seizure was carried out.
16. The learned counsel for the petitioner further submitted that for the purpose of exercising powers under Section 126(3) of the Act of 2003, the Page No.# 8/26 condition precedent is that there has to be an unauthorised use of electricity. Referring to the communication dated 08.12.2021, the learned counsel for the petitioner submitted that the Assessing Officer even did not mention that there was an unauthorized use of electricity, and as such, in absence of the condition precedent, the very provisional bill so made on 08.12.2021 as well as all consequential actions cannot be sustained in law.
17. The learned counsel for the petitioner further submitted that as regards the alleged tampering of the meter, there was regular and periodical inspection so carried out, and as such, it is inconceivable that the meter can be said to be tampered. The learned counsel further submitted that while making the forensic analysis, the petitioner was not given any opportunity and the report of forensic was behind the back of the petitioner. The learned counsel for the Petitioner further submitted that as, on the basis of forensic report, the learned Appellate Authority had arrived at the finding that there was tampering of the meter and that too with dishonest intention, he submitted that if forensic report cannot be sustained, the orders so passed on 29.04.2022 as well as 15.06.2022 cannot also be sustained in law.
18. The learned counsel for the petitioner made an alternative submission without admitting that the petitioner had indulged in unauthorized use of electricity with dishonest intention that it would be at best a case for theft and the civil liability can only be determined in terms with Section 154(5) of the Act of 2003 by the Special Tribunal and not by exercising powers under Section 126(6) of the Act of 2003.
19. Mr. K. P. Pathak, the learned counsel appearing on behalf of the Page No.# 9/26 APDCL, on the other hand, submitted that the seizure so made on 01.10.2021 was in presence of the representatives of the petitioner and this aspect would be seen from the signature appearing in the seizure report of the representatives of the petitioner. He submitted that the provisions of Section 135(4) of the Act of 2003 only stipulates that the provisions of the Code of Criminal Procedure 1973 (for short, "the Code") relating to search and seizure shall apply as far as may be to search and seizure under the Act of 2003, and therefore, it is not imperative that the provision of Section 100(4) of the Code shall have to be abided stricto sensu rather the application of the provisions of Section 100(4) of the Code in terms with the language used in Section 135(4) of the Act of 2003 would be sensu lato i.e. a broad interpretation has to be given taking into account the object behind the Act of 2003.
20. The learned counsel for the Respondent APDCL further submitted that in respect to the forensic report, the same was done by an independent agency whereby the independent agency, i.e. the Deputy Director, Directorate of Forensic Science, Assam in its report dated 15.11.2021 had confirmed that the seals bearing Nos.CEC 00A4430 and CEC 00A4497 were different in certain electrical and physical parameters with those of the specimen seals used by APDCL. It was also opined in the forensic report that the seals bearing Sl. Nos.CEC 00A4430 and CEC 00A4497 are akin to each other and on the basis thereof, it was opined in the said report that there was meter tampering. He, therefore, submitted that the evidence on record which was before the Assessing Authority as well as before the Appellate Authority clearly shows that there was meter tampering which comes within the definition of "unauthorized use of electricity" as defined in the Page No.# 10/26 Explanation-(b) to Section 126 of the Act of 2003. The learned counsel for the Respondent APDCL further submitted that the Petitioner could not place before the fact-finding authorities that the report so submitted by the Deputy Director, the Directorate of Forensic Science was palpably erroneous or suffers from any infirmity. The learned counsel for the Respondent APDCL further submitted that even the report submitted by the Directorate of Forensic Science is not a subject matter of challenge in any proceedings. He, therefore, submitted that if the said report is being applied, it would be apparent that it is a case of meter tampering that too with a dishonest intention. These are findings of facts arrived at by both the fact-finding authority which are neither palpably erroneous nor suffers from perversity. Accordingly, the requisites for exercise of the certiorari jurisdiction of this Court are not met.
21. The learned counsel for the Respondent APDCL also submitted that the alternative submissions so made by the learned counsel appearing on behalf of the petitioner on the aspect that if there is unauthorized use of electricity with dishonest intention, assessment cannot be made in terms with Section 126 of the Act of 2003 cannot be said to be a correct proposition of law in view of the settled position of law declared by the Supreme Court in the case of West Bengal State Electricity Distribution Company Limited and Others vs. Orion Metal Private Limited and Another, reported in (2020) 18 SCC 588.
ANALYSIS AND DETERMINATION:
22. The materials on record shows that on 01.10.2021, an inspection was Page No.# 11/26 carried out, wherein the officers inspecting had come to a conclusion that the petitioner had tampered with the meter. This aspect of the matter would be apparent from the provisional assessment order issued by the Assessing Officer wherein it was mentioned that there was sufficient evidence to conclude that tampering of metering system and theft of power has been made by the petitioner.
23. In this context, it is relevant to take note of the definition of "unauthorised use of electricity" as provided in Explanation-(b) to Section 126 of the Act of 2003. From the said definition, it would be seen that usage of electricity through a tampered meter would come within the ambit of unauthorized use of electricity. Therefore, the contention of the petitioner that the condition precedent for exercising power under Section 126 of the Act of 2003 being not satisfied, in the opinion of this Court cannot be said to be a sustainable contention in as much as usage of electricity through a tampered meter would come within the ambit of "unauthorized use of electricity".
24. Let this Court now take into consideration the submission that the seizure list so prepared was not in conformity with Section 135(4) of the Act of 2003 read with Section 100(4) of the Code. A perusal of Section 135(4) of the Act of 2003 stipulates that the provisions of the Code relating to search and seizure shall apply, as far as may be, to searches and seizures under the Act of 2003. It is the opinion of this Court that the phrase "as far as may be" has to be understood to mean that to the extent practicable/feasible. In various judgments of the Supreme Court, the phrase "as far as may be" had been the subject matter for interpretation. In the case of Sesh Nath Singh Page No.# 12/26 Vs. Baidyabati Sheoraphuli Coop. Bank Ltd. reported in (2021) 7 SCC 313, the Supreme Court dealt with the phrase "as far as may be" in the context of the Section 238-A of the Insolvency and Bankruptcy Code making the Limitation Act, 1963 applicable to the proceedings in NCLT/NCLAT "as far as may be". Paragraph Nos. 89 and 92 being relevant are reproduced herein below:
"89. The legislature has in its wisdom chosen not to make the provisions of the Limitation Act verbatim applicable to proceedings in NCLT/NCLAT, but consciously used the words "as far as may be". The words "as far as may be" are not meant to be otiose. Those words are to be understood in the sense in which they best harmonise with the subject-matter of the legislation and the object which the legislature has in view. The courts would not give an interpretation to those words which would frustrate the purposes of making the Limitation Act applicable to proceedings in NCLT/Nclat "as far as may be".
92. The use of words "as far as may be", occurring in Section 238-A IBC tones down the rigour of the words "shall" in the aforesaid section which is normally considered as mandatory. The expression "as far as may be" is indicative of the fact that all or any of the provisions of the Limitation Act may not apply to proceedings before the adjudicating authority (NCLT) or the appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. At the same time, the words "as far as may be" cannot be construed as a total exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permits a wider, more liberal, contextual Page No.# 13/26 and purposive interpretation by necessary modification, which is in harmony with the principles of the said section."
(emphasis supplied on the underlined portion)
25. From the above quoted paragraphs of the judgment of the Supreme Court in the case of Sesh Nath Singh (supra), the principles of law that can be derived therefrom is that the use of the phrase "as far as may be" in Section 135(4) of the Act of 2003 connotes that the provisions of Section 100 of the Code has to be applied in such a manner that the provisions of Section 100 of the Code best harmonises with the subject matter of the Act of 2003 and the object the legislature had for enacting the Act of 2003.
26. The Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orrissa Ltd. (SOUTHCO) Vs. Shri Seetaram Rice Mills reported in (2012) 2 SCC 108 dealt with the object behind the Act of 2003 and more particularly with reference to Section 126 of the Act of 2003 which the provision, this Court is presently dealing with. Paragraph Nos. 16 to 19 of the said judgment explains how Section 126 of the Act of 2003 is required to be interpreted. It appears from a reading of the referred paragraphs that Section 126 of the Act of 2003 has to be interpreted by adopting purposive interpretation so as to ensure attainment of the object and purpose of the Act of 2003 i.e. "revenue focus" to be one of the prime considerations. Paragraph Nos. 16 to 19 of the said judgment being relevant are quoted herein under:
"16. First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed. From the objects and reasons stated by us in the beginning of this judgment, it is clear Page No.# 14/26 that "revenue focus" was one of the principal considerations that weighed with the legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms.
17. This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime. In our considered view, the two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the Act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled canon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject-matter. A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results.
18. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even in relation to penal statutes, decide that any narrow and Page No.# 15/26 pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject- matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, become a code in themselves. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve i.e. to put an implied restriction on such unauthorised consumption of electricity.
19. The provisions of the 2003 Act, applicable Regulations and the Agreement executed between the parties at the time of sanction of the load prohibit consumption of electricity in excess of maximum sanctioned/installed load. In the event of default, it also provides for the consequences that a consumer is likely to face. It embodies complete process for assessment, determination and passing of a demand order. This defined legislative purpose cannot be permitted to be frustrated by interpreting a provision in a manner not intended in law. This Court would have to apply the principle of purposive interpretation in preference to textual interpretation of the provisions of Section 126 of the 2003 Act. We shall shortly discuss the meaning and scope of the expressions used by the legislature under these provisions. At this stage, suffice it to note that this Court would prefer Page No.# 16/26 to adopt purposive interpretation so as to ensure attainment of the object and purpose of the 2003 Act, particularly, of the provisions of Section 126 in question."
27. In the said judgment, the Supreme Court dealt with the apparent distinction between Section 126 and Section 135 of the Act of 2003. In the opinion of this Court, this distinction is vital for understanding the use of the phrase "as far as may be" in Section 135(4) of the Act of 2003. Paragraph Nos. 24 to 30 of the judgment in the case of Shri Seetaram Rice Mills (supra) being relevant are reproduced herein below:
"24. 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. We have already 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.
25. 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 Page No.# 17/26 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. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.
26. In contradistinction to these provisions, Section 126 of the 2003 Act 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 an "unauthorised use of electricity". Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.
27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional Page No.# 18/26 assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Part XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.
28. 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. It does not have features or elements which are traceable to the criminal concept of mens rea.
29. 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 Page No.# 19/26 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.
30. 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."
28. In view of the apparent distinction between Section 126 and Section 135 of the Act of 2003, let this Court now apply the law laid down in the case of Sesh Nath Singh (supra). In the opinion of this Court, the application of Section 100 of the Code insofar as Section 126 of the Act of 2003 is concerned, the same would not be practicable but on the other hand, the provisions of Section 100 of the Code insofar as Section 135 of the Act of 2003 which relates to criminal liability has to be applied with all vigour. The said interpretation in the opinion of this Court appears to be in line with Page No.# 20/26 the legislative intent and the object sought to be achieved. The said interpretation in the opinion of this Court is further vindicated by the apparent language used in Section 126 of the Act of 2003 which is merely based upon inspection and coming to the conclusion that there is unauthorised use of electricity and whereas in Section 135 of the Act of 2003, it starts with the words "whoever dishonestly" meaning thereby that the element of mens rea is involved and falling squarely within the dimensions of criminal jurisprudence.
29. In the instant proceedings, this Court is not dealing with the criminal liability. The issue involved herein is in respect to the legality and validity of the actions falling within the ambit of Section 126 of the Act of 2003. Under such circumstances, the legality of the seizure need not be gone into.
30. Now let this Court deal with the legality and validity of the order dated 29.04.2022 as well as the order dated 15.06.2022 passed by the learned Appellate Authority. The findings of facts so arrived at by the learned Appellate Authority is based upon the report submitted by the Directorate of Forensic Science which is an independent authority and upon due application of law. The learned counsel for the Petitioner though submitted that the report submitted by the Directorate of Forensic Science was made behind the back of the petitioner, but the said submission appears to be made just for the sake of rejection in as much as the Directorate of Forensic Science is an independent authority and without specific allegations of malice in facts or bias, such allegations so made by the petitioner cannot be accepted. Apart from that, there is no challenge to the Report in the present proceedings.
31. This Court further had perused the order dated 29.04.2022 and Page No.# 21/26 15.06.2022 passed by the learned Appellate Authority. The decisions of the learned Appellate Authority insofar as it relates to the Petitioner herein in the opinion of this Court do not appear to be perverse or palpably erroneous. In this regard, this Court finds it relevant to refer to a judgment of the Supreme Court in the case of Central Council for Research in Ayurvedic Science Vs. Bikartan Das reported in (2023) 16 SCC 462 wherein the Supreme Court explained the contours of the jurisdiction of the Court when it comes to issuance of a writ in the nature of certiorari. Paragraph Nos. 48 to 50 of the said judgment are reproduced herein under:
"48. Before we close this matter, we would like to observe something important in the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.
49. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of the Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.
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50. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not."
As stated above, nothing could be shown that the decisions dated 29.04.2022 and 15.06.2022 passed by the learned Appellate Authority insofar as against the Petitioner were palpably erroneous or perverse. Under such circumstances, the question of interference with the orders dated 29.04.2022 and 15.06.2022 in exercise of the certiorari jurisdiction of this Court does not arise.
32. Now let this Court deal with the alternative submission so made by the learned counsel appearing on behalf of the Petitioner by way of Page No.# 23/26 demurrer to the effect that the Respondents including the learned Appellate Authority had held that it is a case of theft and therefore, there cannot be an assessment made on the basis of unauthorized use of electricity in terms with Section 126 of the Act of 2003. The learned counsel for the Petitioner submitted that at the best, if theft is proved, Section 154(5) of the Act of 2003 only empowers the Special Tribunal to determine the civil liability. In the opinion of this Court, the said submission is totally misconceived and untenable inasmuch as the learned counsel for the Petitioner had failed to notice the difference between Section 126 and Section 135 of the Act of 2003 in the proper perspective. The judgment of the Supreme Court in the case of Orion Metal Private Limited and Another (supra) and more particularly at paragraph No.13 expresses in unambiguous terms that even in the case falling within theft, the authorities under the Act of 2003 are empowered to make a provisional and final assessment by invoking the powers under Section 126 of the Act of 2003. Paragraph No.13 of the said judgment being relevant is reproduced herein under:-
"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 unauthorised 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 unauthorised 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 Page No.# 24/26 the Act, will fall within the definition of unauthorised use of electricity. As per Section 135(1-A) 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(1-A) 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 authorises electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of "unauthorised 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 the Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of the Special Court, that the Special Court is empowered to convict the consumer and impose Page No.# 25/26 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 person concerned, 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."
(emphasis supplied upon the underlined portion)
33. In that view of the above discussion and analysis, this Court therefore disposes of the instant writ petition with the following observations and directions:-
(i) This Court does not find the present case to be a fit case for exercise of certiorari jurisdiction in respect to the orders dated 29.04.2022 and 15.06.2022 passed by the learned Appellate Authority in Appeal No.1/2022 as well as the review petition.
(ii) The challenge made to the Inspection Report dated 01.10.2021 is not sustainable and accordingly rejected.
(iii) The challenge made to the seizure list dated 01.10.2021 as well as the FIR dated 08.12.2021 is not decided in the present proceedings. The Petitioner would be at liberty to assail the same in appropriate Page No.# 26/26 proceedings, if so advised.
(iv) There being no merit, the instant writ petition stands dismissed.
(v) In the present facts, this Court is not inclined to impose any costs.
(vi) This Court observes that the above adjudication being limited to the legality and validity of the proceedings under Section 126 of the Act of 2003 and the orders passed by the Appellate Authority dated 29.04.2022 and 15.06.2022, the observations made in the instant judgment shall not affect the Petitioner in the criminal proceedings if so initiated against the Petitioner under Section 135 of the Act of 2003.
JUDGE Comparing Assistant