Hon'ble Irshad Ali, J.
1. Heard Sri Sharad Pathak, learned counsel for the petitioner, Sri Q.H. Rizvi, learned Standing Counsel for the respondent no.1 and Sri Amarjeet Singh Rakhra, learned counsel for the respondent nos. 2 to 4.
2. It has been pointed out that earlier the petitioner has filed writ petition No. 25864 of 2019 (M/B), which was dismissed as withdrawn with liberty to file fresh petition vide judgment and order dated 19.9.2019.
3. By means of the instant writ petition under Article 226 of the Constitution of India, the petitioner is challenging the demand notice dated 14.8.2019 issued by the Executive Engineer/ Prescribed Authority, Electricity Division, Raniganj (respondent no.3), under Section 3 of the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958, requiring him to pay Rs.627596/- within thirty days. The petitioner is also assailing the assessment sheet contained in Annexure No.9 to the writ petition.
4. Facts of the case stated in brief are that the petitioner is the Manager of Babu Sant Bux Shiv Murti Singh Shikshan Sansthan (hereinafter referred to as "Trust"), which has been registered under the Indian Trust Act, 1882 and is running Mdalsa College of Pharmacy in Village Banveer Kachh, Pratapgarh City, Pratapgarh, U.P. d
5. In the said college, the petitioner has taken two electricity connections; one 5 HP electricity connection (Account no. 741905720031) under general scheme (Samanya Yojna; and second 7 KW commercial connection (Account No. 741801139256).
6. On 5.4.2019, premises of the petitioner's college was investigated by the team of officers of the Electricity Distribution Division in the presence of the the representatives of the petitioner's college. During investigation, it was found that agreemented load 2 KW was directly connected from transformer and the petitioner is using 4KW electricity unauthorizedly by connecting cable from his LMV-2. Thereafter, an FIR was lodged against the petitioner vide case crime No. 323 of 2019, under Section 135 of the Indian Electricity (Amendment) Act, 2003 at Police Station Kotwali City.
7. Submission of the learned counsel for the petitioner is that in the said FIR, investigation was made and after due investigation, the Investigating Officer has filed final report in the matter on 26.7.2019 bearing No. 201 of 2019. In the meanwhile, a notice dated 17.6.2019 was issued to the petitioner, requiring him to either submit an application along with documentary proof up to 5.7.2009 or deposit the amount of Rs.6,27,557/- till the date fixed. On receipt of the said notice dated 17.6.2019, the petitioner submitted his reply along with documentary proof. Subsequently, on 19.7.2019, the petitioner has also preferred an application to the Sub-Divisional Officer, Purvanchal Vidyut Vitaran Nigam Ltd., Bhagwachungi, Pratapgarh, stating therein that electricity dues of two electricity connection i.e. A/C No. 741801139256 and A/C No. 741905720031 are being regularly paid and so far as Account no. 741801308031 is concerned, the same is closed as it is result of double billing being done by the department.
8. Learned counsel for the petitioner has further submitted that after service of reply dated 27.6.2019 in furtherance of notice dated 17.6.2019, the petitioner has not been provided any order passed by respondents but all of a sudden, impugned demand notice dated 14.8.2019 has been served upon the petitioner, requiring him to deposit Rs.6,27,596/-, which is illegal, arbitrary and mala fide.
9. Per contra, learned counsel for the respondent nos. 2 to 4 has submitted that the assessment under Section 126 of the Electricity Act, 2003 (hereinafter referred to as "Act, 2003") has to be made in all the cases where unauthorised use of electricity is found. He submits that in the cases of theft of electricity as provided under Section 135 of the Act, 2003, assessment under Section 126 of the Act, 2003 has also to be made. Assessment under Section 126 of the Act, 2003 is made in all the cases including the cases of theft of electricity under Section 135 of the Act, 2003. The Special Court trying an offence under Section 135 of the Act, 2003 is to determine the criminal and civil liability which in no manner precludes the assessment under Section 126 of the Act, 2003. He further submits that the provisional assessment notice as well as the final assessment order were sent to the petitioner, and it cannot be said that the assessment was made without giving any notice to the petitioner. He submits that the recovery against the petitioner as arrears of land revenue has rightly been issued on the basis of final assessment; theft of electricity having been made out against the petitioner; the assessment has rightly been made; and the petitioner is not entitled to any relief in the writ petition. He lastly contended that against the final assessment order, the petitioner has a remedy of filing an appeal under Section 127 of the Act, 2003, hence the writ petition be not entertained.
10. Before we consider the rival submissions made by the learned counsel for the parties, it is necessary to refer to the statutory provisions in that regard.
11. The Electricity Act, 2003 has been enacted to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and for matters connected therewith or incidental thereto.
12. Part XII of the Act, 2003 bears the heading "Investigation and Enforcement". Section 126 of the Act, 2003 which provides for assessment is as follows:
"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 judgement 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:
2[***] [(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 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 rates 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 4 [(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.]"
13. The definition of "unauthorised use of electricity" is given in explanation "b" of Section 126.
14. Part XIV of the Act, 2003 deals with "Offences and Penalties" Section 135 which is relevant in the present case is as follows:
"135.Theft of Electricity.- 1[(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 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 disconnection:
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) 1 [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 2[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 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."
15. Part XV of the Act, 2003 relates to Special Courts. Section 153 of the Act, 2003 provides the State Government may, for the purposes of providing speedy trial of offences referred to in Sections 135 to 140 and Section 150 by notification in the Official Gazette, constitute as many Special Courts as may be necessary.
16. Section 154 of the Act, 2003 deals with Procedure and power of Special Court. Sections 154(1), 154(5) and 154(6) of the Act, 2003 which are relevant for the present case are as follows:
"154. (Procedure and power of Special Court): (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under [Sections 135 to 140 and Section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
(2)........
(3)........
(4) .......
(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."
17. Section 126 of the Act, 2003 is in Part XII "Investigation and Enforcement" whereas Section 135 is in Part XIV "Offences and penalties". An offence for finding out whether a consumer or a person has committed offence, investigation has to be undertaken earlier. Section 126 (1) uses the words "if on an inspection of any place or premises or after inspection or 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 unauthorised use of electricity."
18. "Unauthorised use of electricity" has been defined in explanation (b) of Section 126 of the Act,2003. Section 135 (1) of the Act, 2003 begins with the words "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.
19. 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:
"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."
20. Sixth proviso to Section 135 (1) of the Act, 2003, uses the words "assessed amount" which is nothing but an assessed amount as contemplated by Section 126 of the Act, 2003.
21. Civil liability is defined in the explanation to Section 154 of the Act, 2003 which is to the following effect:
"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."
22. Sub-section (6) of Section 154 of the Act, 2003 provides that 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.
23. Sub-section (6) of Section 154 of the Act, 2003 uses the word "deposited" by the consumer or the person. The word "deposited" by the consumer or the person used in sub-section (6) of Section 154 of the Act, 2003 is nothing but an amount deposited by the consumer in accordance with Section 126 of the Act, 2003, since there is no other provision in the Act, 2003 for deposit of the amount by a consumer or the person relating to theft of electricity.
24. U.P. Electricity Supply Code, 2005 has been framed in exercise of powers conferred under Section 50 of the Act, 2003. The provisions of the Code, 2005 can be utilised to know as to how the provisions of Sections 126 and 135 of the Act, 2003 has been understood by Uttar Pradesh State Electricity Regulatory Commission which has framed the Code, 2005.
25. Chapter 8 of the Code, 2005 contains the heading "Tampering, Distress or Damage to Electrical Plant, Meters Etc.
26. Clause 8.1 (a) of the Code, 2005 contains the heading "Procedure to be adopted by licensee for Inspection, Provisional Assessment Hearing and Final assessment in case of theft of electricity under Section 135 of the Act.
27. Clause 8.1 (b) of the Code, 2005 which is relevant in the present case is quoted below:
"(b) Hearing
(i) Within 3 working days of the date of inspection, the designated Authorized officer shall analyse the case after carefully considering all the evidences like documents, facts on record, the consumption pattern, wherever available and the report of inspection.
(ii) No theft case shall be booked for mere breakage of window glass or old seal of the energy meter. In such cases, if the average monthly consumption pattern for last one year is reasonably uniform as the assessed consumption (monthly), and there is no other prima facie evidence of theft/UUE found at the consumer premises, no further proceedings shall be taken for theft/UUE of electricity and the decision shall be communicated to the consumer under proper receipt within 7 working days of the date of inspection, and connection shall be restored through original meter after proper checking/resealing. The contents of such report recommending for dropping the case shall be communicated to the Special Court with a copy to the police station where the FIR was lodged.
(iii) If the Assessing Officer of the licensee suspects that theft of Electricity has taken place (as defined under Section 135 of the Act), he will serve the provisional assessment bill alongwith show cause notice to the consumer for hearing, giving 15 working days, under proper receipt. The notice shall invite objections in writing from the consumer, if any, against the charges and provisional assessment and require the presence of the consumer to answer to all the charges imposed by the licensee.
(iv) If, after hearing, the authorized officer finds that a case of theft has been established, the assessment shall be done for the energy consumption for past period as per the assessment formula given in Annexure 6.3 on [2 (two) times the rates as per applicable normal tariff to the purpose for which the energy is abstracted, used or consumed or wasted or diverted, whichever is higher and demand and collect the same by including the same in a separate bill. This is in addition to any civil / criminal proceedings that may be instituted as provided by the Act, and described in cl. 8.2(vii).
(v) A copy of the order shall be served to the consumer under proper receipt and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The Authorized officer may extend the last date of payment or approve the payment to be made in instalments on a consideration of the financial position and other conditions of the licensee. The amount, the extended last date and/or time schedule of payment/instalments should be clearly stated in the speaking order."
28. Code, 2005 thus clearly provides that even in the cases of theft of electricity under Section 135, of the Act, 2003, the Authorised Officer has to serve a provisional assessment bill and thereafter finalise the assessment. Thus, the provision of the Code, 2005, clearly indicates that for a theft of electricity under Section 135 of the Act, 2003 assessment has to be made under Section 126 of the Act, 2003.
29. A Division Bench of this Court had occasion to consider both the provisions i.e. Sections 126 and 135 of the Act, 2003 in M/s Paliwal Alloys Pvt Ltd. :2009 (7) ADJ, 455. The Division Bench in the said case has laid down that theft of electricity under Section 135 of the Act, 2003 is also an unauthorised use of electricity for which assessment is contemplated under Section 126 of the Act, 2003. It is useful to quote paragraphs 24, 25, 26, 27 and 28 of the said judgement which are quoted below:
"24. Section 126 provides that if on an inspection of any place it is found that such person is indulging in unauthorised use of electricity he shall be provisionally assessed. The words used in Section 126 are ''unauthorised use of electricity'. Unauthorised use of electricity has been defined in Explanation (b), as quoted above. The definition of unauthorised use of electricity as given in Explanation (b) is wide enough which covers the usage of electricity by any artificial means or by a means not authorised by the concerned person or authority or licensee or through a tampered meter. The said definition of unauthorised use of electricity as explained in Explanation (b) is comprehensive enough to cover in itself the theft of electricity. The theft of electricity has been more elaborately explained in Section 135 but the theft of electricity as defined in Section 135 is fully covered by the definition ''unauthorised use of electricity' and the theft of electricity under Section 135 is also an unauthorised use of electricity for which assessment is contemplated under Section 126. The provisions of Section 135 is under the Chapter ''Offences and Penalties', which deals a different subject than the assessment. A person found indulging in theft is also liable for offences and penalties and can be prosecuted and convicted according to the Act. The scheme of the 2003 Act does not exclude the assessment under Section 126 in theft cases. Our above conclusion is further fortified by Section 135(1A) third proviso, which provides 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 the Act, shall without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply. Thus assessment of electricity charges due to theft of electricity is contemplated under Section 135 itself, which further provides that after deposit of the assessed amount electricity is required to be restored. In case in theft no assessment is to be made under Section 126. Section 135(1A) third proviso would not have been as contained in the Act. The scheme of the 2003 Act thus clearly delineates the object that Legislature contemplated assessment under Section 126 with regard to all categories of unauthorised use of electricity including theft of electricity and the submission of learned counsel for the Corporation that assessment of theft cases is not done under Section 126 hence the appeal cannot be filed under Section 127 does not appeal to us.
25.Learned counsel for the Corporation submits that separate procedure has been provided with regard to assessment in theft cases under Paragraph 8.1 of the 2005 Code but no appeal has been provided to the appellate authority under Paragraph 8.1. The provisions regarding right of appeal is a substantive provision, which has been provided in the Act itself. The right of the appeal given in the Act cannot be taken away by any provision framed in the U.P. Electricity Supply Code, 2005. Moreso, there is no provision in the Code which indicates that there is no right of appeal for the theft assessment made under Paragraph 8.1. There are two decisions of the Division Bench of this Court, first in Writ Petition No.19574 of 2008 (M/s Radha Krishna Cold Storage vs. State of U.P. and others) where also the submission made before us was raised. Following observations were made by the Division Bench in the said case:-
"In reply to the aforesaid, learned counsel for the petitioner submitted firstly, that an appeal does not lie against the order in question as the appeal lies only against the order under Section 126 of the Act and not under Section 135 of the Act. It it settled principle that the order under challenge in the writ petition is the assessment order, which can be passed only under Section 126 of the Act and mere non mention of the relevant provisions or incorrect mention of the provisions will not vitiate the order. This is the settled legal proposition therefore this contention raised by learned counsel for the petitioner that since the order has been passed under Section 135 of the Act, therefore the remedy under Section 127 of the Act is not available to him deserves to be rejected and is hereby rejected."
26. The second Division Bench judgment is in the case of Ashok Kumar and others vs. State of U.P. and others reported in 2008(6) Allahabad Daily Judgments 669. In the said judgment the Division Bench of this Court has held that unauthorised use of electricity as defined in Explanation (b) of Section 126 also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Paragraph 58 of the said judgment is quoted below:-
"58. The term "unauthorized use of electricity" is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) 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. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion."
27.Learned counsel for the petitioner has also relied on a judgment of the Apex Court in the case of Chairman, West Bengal State Electricity Board and others vs. Syed Mukbul Hossain and others reported in (2009)2 S.C.C. 727 where in a case of theft of electricity the Apex Court noticed the right of appeal under Section 127 of the Electricity Act, 2003.
28.In aforesaid view of the matter, we are of the considered opinion that assessment under Section 126 is also to be made in theft cases and a person has right of appeal. In the present case it is on the record that assessment was made by the Executive Engineer on the basis of checking dated 14th June, 2006 and assessment bill was given on 13th July, 2006 (Annexure-1 to the writ petition). The assessment made by Executive Engineer was under Section 126 and the petitioner has right of appeal, which appeal has already been filed and is pending. Learned counsel for the Corporation has further submitted that against the order of this Court dated 3rd August, 2008 by which this Court directed that on payment of Rs.10,00,000/- further recovery shall not been made till the decision of appeal, has been challenged by the Corporation in the Apex Court. It is true that special leave to appeal (civil) has been filed against the Division Bench order of this Court but it is not the case of the Corporation that the Apex Court has stayed that order till date. Thus the order dated 3rd August, 2006 passed by this Court permitting the petitioner to file appeal and subject to deposit of Rs.10,00,000/- the realisation was stayed still enures to the benefit of the petitioner and till such date the Apex Court passes an order either staying the order of this Court, it was not open for the Corporation to recover the amount of theft assessment in view of the fact that the petitioner had complied with the order of this Court dated 3rd August, 2006 by depositing the amount of Rs.10,00,000/-."
30. The Division Bench in the said case has also laid down that for theft of electricity under Section 135 of the Act, 2003, assessment is to take place under Section 126 of the Act, 2003.
31. 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 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 bypassing the installed meter, the cases 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 unauthorized 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 unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.
32. In view of the foregoing discussions, we are of the view that the submission of the learned counsel for the petitioner that since F.I.R. has been lodged under Section 135 of the Act, 2003 against the petitioner and final report under Section 173 Cr.P.C. has been filed, no assessment proceedings could have been undertaken under Section 126 of the Act, 2003 cannot be accepted and both the above issues are answered as follows:
33. Considering the aforesaid, we are of the view that assessment under Section 126 of the Act, 2003 is to be made even in a case where an offence under Section 135 has been made. In the case involving theft of electricity, assessment has to be made under Section 126 of the Act, 2003 by the Authorised Officer. The Special Court trying an offence is to finally determine the civil liability and after determination of civil liability further action is to be taken in accordance with Section 154(6) of the Act, 2003.
34. For the reasons aforesaid, no interference under Article 226 of the Constitution of India is made out.
35. The writ petition lacks merit and is, accordingly, dismissed.