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Learned counsel for the petitioner elaborating his submission contended that since it is the Special Court which is to determine the civil liability against the consumer as provided in Section 154(5) of the Act, 2003, the assessment under Section 126 cannot be made. He submits that Section 126 of the Act, 2003 shall not apply in the cases where there is allegation of theft of electricity. Submission of the learned counsel for the petitioner is that had it been contemplated that assessment be made under Section 126 of the Act, 2003 in the cases for theft of electricity also there was no occasion for empowering the special court to determine the civil liability. He submits that in the present case since F.I.R. under Section 135 of the Act, 2003 has already been registered and an allegation of theft of electricity has been made against the petitioner which is apparent from the checking report filed along with counter affidavit, there was no jurisdiction in the Executive Engineer to make assessment under Section 126 of the Act, 2003.

All instances detailed in Section 135(1) of the Act, 2003 are instances of "unauthorised use of electricity" as defined in explanation (b) of Section 126 of the Act, 2003. The unauthorised use of electricity is genus of which the instances detailed in Section 135(1) of the Act, 2003 are species. Theft of electricity is unauthorised use of electricity done "dishonestly" hence the assessment under Section 126 of the Act, 2003 has to follow whenever unauthorised use of electricity is made by a person or a consumer. The said unauthorised use of electricity becomes theft when coupled with dishonest intention which invites imprisonment. Section 126 of the Act, 2003 does not indicate that assessment shall not be made if the unauthorised use of electricity becomes a theft. Section 135 of the Act, 2003 also does not give any indication that assessment under Section 126 of the Act, 2003 is not to be undertaken, if there is a theft of electricity. The sixth proviso to Section 135(1) provides as follows:

In the said case, the Apex Court had occasion to consider the distinction between "unauthorised use of electricity" as used in Section 126 of the Act, 2003 and "theft of electricity" as provided in Section 135 of the Act, 2003. In the said case, the respondents had obtained electricity supply under an agreement on 09/12/1997. The premises was inspected on 10/6/2009. On 25/7/2009 a provisional assessment order was issued raising a demand. The respondent was required to file objections. The respondent did not file any objections but filed Writ Petition No.12175 of 2009 challenging the provisional assessment order before the High Court. The respondent contended that the provisions of Section 126 of the Act, 2003 were not attracted in the above case. The High Court held that overdrawal of (Maximum Demand) would not fall under the scope of "unauthorised use of electricity" and the appellants had no jurisdiction to issue provisional assessment order. Against the order of the High Court, the appellants had filed appeal. The issues which fell for consideration were noticed by the Apex Court in para 12 of the judgment which is to the following effect:

From the facts of the case as noted above, the writ petition was filed in the High Court challenging the provisional assessment notice. The main issue for consideration before the High Court was that wherever the consumer consumes electricity in excess of the consumption of the contracted load, would the provisions of Section 126 of the 2003 Act be attracted. Certain observations made by the Apex Court as noted above were to the effect of highlighting distinctions between the cases of "unauthorised use of electricity" under Section 126 of the Act, 2003 and "theft of electricity" under Section 135 of the Act, 2003.