IMPORTANT POINTS
If electricity Board makes provisional assessment u/s 126, the consumer will have a right to appeal u/s 127.
While section 126 involves monitory liability, section 135 involves criminal liability.

JUDGMENT

Abhay Manohar Sapre, J.

1) These appeals are directed against the common final judgment and order dated 04.05.2007 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition Nos.5858 of 2005, 2821, 2705, 2706/2006, 6219/2005, 721/2006, 3737/2005, 3935/2005, 1386, 1389, 1586 & 2060/2006 whereby the High Court dismissed the writ petitions filed by the appellant herein and partly allowed the writ petitions filed by respondent-Consumer.

2) The controversy involved in these appeals is short as it would be clear from the facts mentioned hereinbelow.

3) For the sake of convenience, the facts pertaining to C.A. No.3370 of 2007 were taken into account. Respondent No. 2 is running Oil Mill having cotton seeds crushing activity at Akola (Maharashtra). They are consumers of electricity, which is supplied to them by the State Electricity Board -the appellant herein (hereinafter referred to as “the Board”)

4) On 17.03.2003, the sleuths of the Board visited respondent No.2’s factory and replaced Meter No.356, installed in the factory with a new Meter bearing No. MSE 04821. On 02.08.2003, the sleuths again visited the factory and on inspection found some tampering with the Meter seals. This led to making of provisional assessment by the appellant under Section 126 of the Electricity Act, 2003 (for short “the Act”) for the unauthorized use of electricity. The Board accordingly sent a provisional bill to respondent No.2 followed by revised provisional bill dated 16.08.2003 for Rs.21,38,660/-.

5) Respondent No.2, felt aggrieved, filed a writ petition and questioned the legality and correctness of the provisional bill. During the pendency of the writ petition, the final assessment order was issued to respondent No.2 on 24.11.2003. However, the High Court quashed and set aside that order and remanded the matter to the Authority for giving an opportunity to respondent No.2 while passing the final order. It was done and accordingly final order dated 29-30.04.2004 demanding a sum of Rs.62,52,632/-was passed by the Authority against respondent No.2.

6) The aforesaid order was challenged by respondent No.2 under Section 127 of the Act before the Appellate Authority. The Appellate Authority by order dated 15.04.2005 disposed of the appeal giving rise to filing of the writ petition by the Board as also by the consumer (respondent No.2) in the High Court of Bombay, Nagpur Bench. The other similarly situated consumers also filed writ petitions before the High Court.

7) By impugned common judgment, the High Court dismissed the writ petitions filed by the Board whereas partly allowed the writ petitions filed by the consumers. While setting aside the Appellate Order, the High Court remanded the case to the Assessing Authority and directed the parties to abide by the provisions of Section 126/127 of the Act.

8) It is against this judgment, the Board alone has felt aggrieved and filed these appeals by way of special leave in this Court.

9) Heard Mr. A.S. Bhasme, learned counsel for the appellant and Ms. V. Mohana, learned senior counsel for the respondents.

10) Having heard learned counsel for the parties and on perusal of the record of the case, we do not consider it necessary to examine the legal questions which, according to the learned counsel for the Board, arise in these appeals and leave them open for being decided in appropriate case, if they really arise and found necessary to decide the lis.

11) Leave aside the legal questions, we find otherwise no reason to interfere in the impugned judgment of the High Court which, in our opinion, is sustainable on facts.

12) Suffice it to say, the High Court while allowing the consumers’ writ petitions and, in consequence, setting aside of the Appellate Order passed under Section 127 of the Act by the Appellate Authority rightly remanded the case to the Assessing Authority for making provisional assessment under Section 126 of the Act and then to take recourse under Section 127 of the Ac