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5. The learned counsel for the petitioners has contended that the impugned orders dt.22.9.03 and 2.3.04 are both illegal and unlawful as the notification dt.2.4.93 lapsed on the provisions of the Electricity Act, 2003, having brought into force on 10.6.03. The learned counsel for the petitioners has drawn my attention to the provisions of section 126 and 127 of the Electricity Act, 2003 and has contended that the procedure for assessment of the Electricity demand in the case of theft has to be computed in accordance with the provisions of section 126 and 127 of the Electricity Act, 2003 and not on the basis of notification dt.2.4.93 which has been issued under the provisions of Electricity (Supply) Act, 1948. It has been contended that the provisions of section 126 and 127 of the Electricity Act, 2003 are totally different than the provisions of the notification dt.2.4.93. Page 1225 It has been contended by the learned counsel for the petitioners that the impugned orders dt.22.9.03 and 2.3.04 which are passed under Notification dt.2.4.93 but subsequent to 10.6.03 when the provisions of sections 126 and 127 of Electricity Act, 2003 having brought into effect the said orders are without Jurisdiction and thus the same are liable to be set aside. It has been contended by the learned counsel for the petitioners that the respondents are not in law entitled to rely upon the notification dt.2.4.93 and / or follow the procedure prescribed under the said notification when in effect by virtue of bringing into force the provision of Electricity Act, 2003 a separate method of assessment is provided for under Section 126 and the appeal therefrom under section 127 of the Electricity Act, 2003. It has been thus contended by the learned counsel for the petitioners that both the orders are illegal, without Jurisdiction and are liable to be quashed and set aside.

6. On the other hand the learned counsel for the respondents has contended that though the provisions of section 126 and 127 has been brought into force on 10.6.03 still by virtue of the proviso contained in section 61 of the Electricity Act, 2003, the notification issued under the Electricity (Supply) Act, 1948 dt.2.4.93 is saved for the period of one year or till the regulations for tariff is framed under section 61 of the said Act, whichever is earlier. It has been contended by the learned counsel for the respondents that section 61 of the said Act provides for fixation of tariff and terms and conditions for determination of such tariff. The said exercise has to be undertaken under section 61 by the Appropriate Commission. It has been contended that there was no such Commission constituted even till the date when the impugned orders are passed. Thus, by virtue of proviso to the said section 61, the earlier tariff and terms and conditions for supply of electricity on the basis of earlier tariff continue to operate between the parties. It has been contended that the terms and conditions and fixation of tariff in the present case was undertaken and notified by the notification dt.2.4.93 and thus, the said notification continues to operate and provision of sections 126 and 127 of the Electricity Act, 2003 does not apply. It has been contended by the learned counsel for the respondents that the provision of sections 126 and 127 could only be made applicable when the tariff is so specified by the Appropriate Commission under section 61 of the Act and thus, the provision of sections 126 and 127 has no relevance for the purpose of the preset petition. It has been contended that the action of the respondents has to be judged on the basis of notification dt.2.4.93 and not on the basis of provision of sections 126 and 127 of the Electricity Act, 2003.

7. It has been thus, contended that the impugned orders dt.22.9.03 and the order passed by the Appellate Authority both are legal and valid. It has been further contended that in fact no such issue was raised by the petitioners before the authorities below and not only that but by virtue of filing an appeal in pursuance of the notification issued under section 49 of the Electricity (Supply) Act, 1948 and not under section 127 of the Electricity Act, 2003, the petitioners has acquiesced to the Jurisdiction of the authorities under the notification and thus, they are not entitled to raise the issue of Jurisdiction in the present Writ Petition.

12. It has been contended that when you use the words 'terms and conditions' it is not terms and conditions for supply of electricity but terms and conditions for determination of tariff. In my opinion, the aforesaid argument lacks merits. It is because when you interpret the word 'terms and conditions for determination of tariff' it would be open for the Commission also to determine the terms and condition on which the said electricity should be supplied on that particular tariff. The contention of the learned counsel for the petitioners that both the provision of section 49 of the Electricity (Supply) Act, 1948 and section 126 and 127 of the Electricity Act, 2003 for the purpose of assessment under the new Act must be made applicable so as to take the tariff amount from the old Act and assess under the new Act, cannot be accepted. It is in my opinion the fixation of tariff is charging a provision whereas recovery thereof of way of assessment is machinery provision. Once under the proviso to Section 61 the charging provisions are saved obviously then the entire provisions pertaining to charging of tariff as well as recovery thereof by employing the machinery provisions, would be applicable.