Ashok Kumar Maity vs The West Bengal State Electricity ...
2022 Latest Caselaw 175 Cal

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                           W.P.A. No. 21298 of 2021

                             Ashok Kumar Maity

                                     -vs.-

                The West Bengal State Electricity Board

                through Chairman, WBSEDCL & others




     For the petitioners             :       Mr. Amit Ranjan Pati,
                                             Ms. Afreen Begum,
                                             Mr. Ratikanta Pal


     For the WBSEDCL                 :       Mr. Debjit Mukherjee



     Hearing concluded on            :       20.01.2022

     Judgment on                     :       25.01.2022



     Sabyasachi Bhattacharyya, J:-



1.   The short question which has arisen for consideration in the present

     case is as follows:

2.   Whether the acquittal of a consumer in a criminal proceeding on the

     allegation of theft of electricity ipso facto absolves the consumer from

     the liability to pay the amount finally assessed under Section 126 of
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     the Indian Electricity Act, 2003 (hereinafter referred to as 'the 2003

     Act').

3.   In the present case, the petitioner, being a consumer of electricity

     from the distribution company, contested a criminal proceeding

     against him for alleged theft of electricity by direct hooking from

     nearby LT lines of WBSEDCL under Sections 135(1)(a) and (b) of the

     2003 Act, initiated on the basis of an FIR, and was ultimately

     acquitted.

4.   Learned counsel for the petitioner alleges that no copy of any

     provisional order of assessment under Section 126 of the 2003 Act

     was ever served on the petitioner, nor was the final order of

     assessment passed in the presence of the petitioner and/or after

     hearing the petitioner.

5.   Such     contention   is   controverted   by   learned   counsel   for   the

     distribution company.

6.   Learned counsel for the petitioner places reliance on a judgment of

     the Allahabad High Court in M/s. Citi Hotel Vs. Commissioner,

     Lucknow Divn., Locknow & others, reported at AIR 2009 ALL 137,

     where the learned Single Judge had absolved the petitioner therein

     from the civil liability for theft of electricity on the ground of acquittal

     of the petitioner by the Criminal Court. In the said case, the power

     corporation had failed to show that any wrongful loss had been

     caused to them on account of the acts of the petitioner and that there

     were any dues against the petitioner before the raid was conducted

     and even after restoration of the electrical energy through a new
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     meter, the petitioner had paid the bills. The Criminal Court, in the

     said case, had found that the petitioner was not using any excess

     load over and above the sanctioned limit.

7.   Learned counsel next places reliance on West Bengal State Electricity

     Distribution Company Ltd. and others Vs. M/s. Orion Metal Private

     Limited and another, rendered on August 21, 2019 by a two-Judge

     Bench of the Supreme Court in Civil Appeal No.6547 of 2019. In the

     said judgment, cited by learned counsel for the petitioner in reply, the

     Supreme Court held that, from the scheme of the 2003 Act, it

     appeared that after an inspection team notices unauthorised use of

     energy by tampering the meter, the authorities can disconnect the

     power supply immediately and make immediate assessment for loss

     of energy by invoking power under Section 126(1) of the 2003 Act.

     The term "unauthorised use of energy" was held to be of wide

     connotation. There may be cases of unauthorised use of energy not

     amounting to theft, namely, exceeding the sanctioned load of using

     the electricity in the premises where the use is not authorised, etc.

     But, at the same time, when there is an allegation of unauthorised

     use of energy by tampering the meter, such cases of unauthorised

     use of energy include 'theft' as defined under Section 135 of the 2003

     Act.   After considering the powers conferred on the authorities for

     making assessment under Section 126(1) of the 2003 Act and the

     power to determine civil liability under Section 154(5) of the 2003 Act,

     the Supreme Court held that the said powers could not be said to be

     parallel to each other. The finding of the High Court in the said case,
                                        4


     that both proceedings cannot operate parallelly, was set aside by the

     Supreme Court, holding that in a given case where there is no theft of

     energy, amounting to unauthorised use of energy, in such cases no

     complaint of theft can be lodged as contemplated under Section 135

     of the Act. In such cases for loss of energy, on account of

     unauthorised use of energy not amounting to theft, it was always

     open for the authorities to assess the loss of energy by resorting to

     power under Section 126(1) of the 2003 Act, the Supreme Court held.

     It was further observed that in cases where the allegation is of

     unauthorised use of energy amounting to theft, apart from assessing

     the proceedings under Section 126(1) of the 2003 Act, a complaint

     also can be lodged alleging theft of energy as defined under Section

     135(1) of the Act. In such cases, the Supreme Court observed, the

     Special Court is empowered to determine civil liability under Section

     154(5) of the Act and on determination of civil liability, the excess

     amount, if any, deposited by the petitioner is to be refunded to the

     consumer.    The Supreme Court also observed that it is a settled

     principle that to prove the guilt of the accused in a criminal

     proceeding, authorities have to prove the case beyond reasonable

     doubt and to establish the element of mens rea; on the other hand,

     such strict proof is not necessary for assessing the liability under

     Section 126(1) of the 2003 Act.

8.   Based on such judgments, learned counsel for the petitioner argues

     that, on a composite reading of Sections 126 and 135 of the 2003 Act,

     it is evident that the two operate parallelly.   Thus, it is contended
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      that, in view of the petitioner's acquittal on the charge of theft by the

      Criminal Court, no further liability remained for the petitioner to

      comply with the provisional and final orders of assessment of civil

      liability based on the self-same ground.

9.    Learned counsel for the distribution company cites Circular 11 dated

      May 29, 2015 issued by the Chief Engineer (Distribution), WBSEDCL,

      which relied on the order passed by a Division Bench of this Court in

      the case of Basudeb Paine Vs. W.B.S.E.D.C.L. (vide MAT No.263 of

      2015) to the effect that the proceedings under Sections 135 and 126

      of the 2003 Act stand on separate and independent footing as they do

      not depend on each other. So, acquittal from the charges under

      Section 135 of the 2003 Act will not relieve any person from

      assessment of consumption of electricity charge as per Section 126 of

      the 2003 Act.

10.   Next placing the said judgment of the Division Bench, learned counsel

      for the respondent reiterated the proposition indicated in the

Circular.

11. In the said judgment, a Division Bench of this Court had held that all

unauthorised use of electricity or energy would not result in

prosecution under Section 135 of the 2003 Act; one is civil action for

recovery of amounts towards consumption of electricity and the other

is penal action for the theft of energy. Sections 126 and 135 of the

2003 Act, it was held, stand on separate and independent footings

and do not depend upon each other.

12. The Division Bench, while rendering the said judgment, relied on the

ratio laid down in Executive Engineer, Southern Electricity Supply

Company, Orissa Limited (SOUTHCO) and another Vs. Sri Seetaram

Rice Mill, reported at, (2012) 2 SCC 108. By placing particular reliance

on paragraph no.30 thereof, learned counsel for the distribution

company argues that the Supreme Court found a clear distinction

between cases that would fall under Section 126 of the 2003 Act on

the one hand and under Section 135 on the other. There is no

commonality between them in law and they operate in different and

distinct fields, the Supreme Court held.

13. At this juncture, learned counsel for the petitioner seeks to

distinguish Executive Engineer (supra) by placing particular reliance

on paragraph nos. 51 and 52 thereof, where it was observed by the

Supreme Court that the primary object of the expression "means", as

used in Explanation (b) of Section 126 alone, is intended to explain

the term "unauthorised use of energy'" which, even from the plain

reading of the provisions of the 2003 Act or on a common sense view,

cannot be restricted to the examples given in the Explanation. The

legislature, it was held by the Supreme Court, has intentionally

omitted to use the word "includes" and has only used the word

"means" with an intention to explain, inter alia, what an unauthorised

use of electricity would be. The expression "means" would not always

be open to such a strict construction that the terms mentioned in a

definition clause under such expression would have to be inevitably

treated as being exhaustive. Distinguishing between the civil liability

which fell for construction under Section 126 with the criminal action

contemplated under Section 135 on the ground of theft, learned

counsel for the petitioner interjects that "unauthorised use of

electricity", as contemplated in Section 126, can involve the allegation

of theft or can be on other grounds of unauthorised use.

14. In the event the unauthorised use of alleged is distinct from theft, the

two proceedings, respectively under Sections 126 and 135, would

operate on separate footings; however, if the allegation of

unauthorised use was totally based on theft, as in the present case,

an acquittal on the charge of theft would automatically be followed by

exoneration from the liability to pay any provisional or final

assessment under Section 126 of the 2003 Act.

15. In this context, learned counsel for the distribution company cites

another judgment rendered by a learned Single Judge of the Orissa

High Court in M/s. Jindal Resources Private Limited Vs. Executive

Engineer (Elect.), Western Electricity Supply Camp of Orissa Ltd.,

Rajgangpur Electrical Division, P.O.-Rajgangpur, District-Sundargarh,

reported at, AIR 2018 ORI 176 and places particular reliance on the

observations made in paragraphs 11, 13 and 62 thereof. A composite

reading of paragraphs 11 and 13(i) indicates that one of the questions

which arose in the said case was whether, in a case in which theft of

electricity is alleged under Section 135 of the 2003 Act, in which the

petitioner has been acquitted, an assessment under Section 126 of

the 2003 Act can be said to be sustainable. After discussing the law

on the subject at length, the learned Single Judge held that since

proceedings initiated under the provision of Section 135 of the 2003

Act will have no bearing upon the proceeding initiated under Section

126 of the Act, the latter will also be available in case of acquittal in

the criminal case for offence committed under Section 135 of the

2003 Act.

16. A composite reading of the judgments indicates that some of the

provisions for the 2003 Act acquire relevance in the context. Those

are set forth below:

"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 unauthorised use of electricity, he shall provisionally assess to the best of his judgments 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 maybe 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.

(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 unauthorised 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 the section shall be made at a rate equal to the tariff 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
(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 authorised.

127. Appeal to appellate authority.--(1) Any person aggrieved by a final order made under Section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.

(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to [half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub0section (1) against the final order made with the consent of the parties.

(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.

135. Theft of electricity.--(1) Whoever, dishonestly,--

(a) taps, makes or causes to be made any connection with overhead, underground or underwater 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 de4vice 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 damages or destroys 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 tin 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 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 authorised 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.

(1-A) 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 authorised 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) Any officer of the licensee or supplier as the case may be, authorised 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 used unauthorisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which used for unauthorised 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, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.

154. (Procedure and power of Special Court).--- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under [2sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act :

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court :

Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, crossexamination or re-examination, if any, as it may permit, the witness shall be discharged.

(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :

Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.

(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.

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."

17. Section 126, Explanation (b) stipulates that unauthorised use of

electricity means the usage of electricity by the modes as given

therein.

18. On the other hand, Section 135 clearly defines theft of electricity.

19. A comparison of the respective distinctions clearly indicates that,

whereas "unauthorised use of electricity" is the genus, "theft" is one

of the species thereunder.

20. In the present case, although proceedings were taken out against the

petitioner under Section 135 of the 2003 Act, which ultimately led to

an FIR being registered and a criminal proceeding being initiated on

the charge of theft, ultimately the petitioner was acquitted on contest

in the said criminal proceeding of the charge of theft.

21. However, as observed by the Supreme Court in the cases cited by the

parties, the definition of 'theft' in Section 135 essentially incorporates

the element of 'dishonest intention' on the part of the perpetrator.

22. On the other hand, the expression "unauthorised use of electricity" is

wider in import and may or may not include the component of theft.

In the present case, as evident from the final order of assessment

annexed at page 17 of the writ petition, the distribution company

alleged theft of electricity by direct hooking from nearby LT lines of

WBSEDCL under Section 135(1) sub-sections (a) and (b) of the 2003

Act. However, it was further clarified that, as indicated by the said

'fact', the petitioner was indulging in unauthorised use of electricity

causing pecuniary loss and damage of WBSEDCL. Accordingly, a

provisional, and thereafter a final, assessment order were made under

Section 126 of the 2003 Act.

23. Although the pre-determined component in such alleged

unauthorised use was the alleged theft of electricity by direct hooking,

the same was enumerated to be a mere indicator of unauthorised use

of electricity by the petitioner, which is of a wider import.

24. That apart, the evidentiary principle to be adopted in assessing a

pecuniary loss and damage under Section 126 of the 2003 Act, which

is a civil enquiry in nature, is preponderance of probability.

25. On the other hand, in order to satisfy the ingredients of Section 135

of the 2003 Act, the allegation has to pas the strict proof of evidence

beyond reasonable doubt.

26. Hence, the yardsticks of assessment in a proceeding under Section

126 and one under Section 135 are distinct and different from each

other, as reiterated by the Supreme Court and the Division Bench of

this Court in the cited judgments.

27. Even if no mens rea could be attributed to the petitioner to hold the

petitioner guilty, it could very well be that the petitioner was found to

be liable for unauthorised use of electricity on the standard of

preponderance of probability in a proceeding under Section 126 of the

2003 Act.

28. It may very well be seen from the scheme of the 2003 Act that Section

126 operates in a different field than Section 135. While the former

involves a civil adjudication on the liability of the petitioner for

unauthorised use of electricity, which is amenable to an appeal under

Section 127 upon deposit of 50 per cent of the assessed amount, the

ensuing proceeding upon a charge being levelled under Section 135 is

criminal action and independent determination of civil liability under

Section 154 of the 2003 Act.

29. In fact, Section 124(6) categorically provides that in case the civil

liability determined finally by the Special Court under Section 154(5)

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 the licensee or the concerned person, shall be refunded by

the Board or licensee or the concerned person.

30. Such 'deposit' by a consumer under Section 154(6) can only be an

independent deposit within the contemplation of Section 126 of the

2003 Act. Thus, the language of sub-section (6) of Section 154 ex

facie distinguishes between the scopes of the two sections.

31. Moreover, the present writ petition has been preferred long after the

expiry of the limitation of 30 days, which is the outer limit for filing

an appeal under Section 127 against an assessment made under

Section 126. Section 126 stipulates prior deposit of the entire

provisionally assessed amount as a pre-requisite to the restoration of

electric connection to a consumer, whereas Section 127 mandates

prior deposit of fifty per cent of the entire finally assessed amount by

the consumer as a pre-condition to prefer an appeal under that

section, that too within 30 days of the impugned order.

32. Hence, the prayer of the petitioner for unqualified restoration of

electric connection even after final assessment, despite the petitioner

not depositing any amount, is absurd and beyond the relief envisaged

in the statute itself.

33. Section 145 of the 2003 Act specifically provides that no Civil Court

shall have jurisdiction to entertain any suit or proceeding in respect

of any matter which an assessing officer referred to in Section 126 or

an appellate authority mentioned in Section 127 or the adjudicating

officer appointed under the Act is empowered by or under the Act to

determine. Hence, any interference by the Civil Court has specifically

been prohibited in Section 145 of the 2003 Act in respect of

assessments under Sections 126 and 127 of the 2003 Act. On the

other hand, an FIR within the purview of Section 135 inevitably leads

to a proceeding within the contemplation of Section 154, involving a

criminal action. The assessment of civil liability by the Special Court

under Section 154(5) is independent of the criminal action and, as per

Section 154(6), is subject to the deposit made by the consumer under

Section 126, thus operating on an entirely different footing than the

assessment under Section 126 of the 2003 Act.

34. As such, following the dictum of the Supreme Court in Executive

Engineer (supra) and the Division Bench of this Court in Basudeb

Paine (supra), it cannot but be held that even an acquittal of the

petitioner on the charge of theft levelled under Section 135 of the

2003 Act, on the test of evidence beyond reasonable proof, does not

ipso facto exonerate the petitioner from the civil liability cast under

Section 126 of the 2003 Act, which is subject to the more liberal test

of preponderance of probability.

35. The genesis of the final assessment, as reflected from the order of

final assessment under Section 126, is "unauthorised use of

electricity", which is only "indicated" by the alleged theft by direct

hooking, and not "theft" simpliciter. Hence, not merely "theft" but

"unauthorised use of electricity", which is of much wider import, was

the plinth of the provisional and final assessments.

36. Moreover, the petitioner consciously bypassed the remedy of appeal,

which would have essentially required a prior deposit of fifty per cent

of the assessed amount, as contemplated under Section 127 of the

2003 Act. Hence, the petitioner cannot be permitted to obtain

indirectly a relief from the Writ Court, which he could not get directly

from the designated appellate forum at this belated juncture. Since

the joint operation of Sections 126 and 127 precludes the distribution

company from restoring the electric supply of the petitioner-consumer

without payment in terms of the order of assessment, which has since

attained finality, it does not lie in the mouth of the petitioner to

contend that the petitioner is entitled to unqualified restoration of

electricity even without preferring a valid challenge to or complying

with the final order of assessment.

37. In such view of the matter, the present writ petition fails.

Accordingly, W.P.A. No.21298 of 2021 is dismissed on contest.

38. There will be no order as to costs.

39. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )