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.
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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
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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
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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
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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
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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
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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
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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
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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.# 14/26that “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.# 15/26pedantic, 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.# 16/26to 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
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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
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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
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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
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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.
Page No.# 22/26
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.# 24/26the 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.# 25/26a 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
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