Assessment in cases of unauthorized use of electricity, including theft, must be made under Section 126 of the Electricity Act, 2003, and is appealable under Section 127, with the final determination subject to the Special Criminal Court's decision.

1. Petitioner No. 1 is the firm name and style of the shop of petitioner No. 2 at Boring Road in the district of Patna. For the purposes of the said shop, in April 2006, an electric connection was taken from Patna Electric Supply Undertaking (PESU), an undertaking of the Bihar State Electricity Board under consumer category NDS-II which was a three phase low tension connection for a sanctioned load of 14 KW under Account No. 41801150/346162. Oh 28.4.2008, the Special Task Force (STF) of the Board conducted an inspection of the petitioners premises and, taking into account all load connected, they came to the conclusion that petitioners had an installed load of 14.836 KW which was rounded off to 15 KW and, thus, allegedly had an excess load of 1 KW. Accordingly, petitioners were served with a bill for additional load of Rs. 6,044/- and asked to pay additional amount for load enhancement both of which petitioners paid. It may be noticed here that the said inspection import has been annexed as Annexure-7 to the supplementary affidavit filed on behalf of petitioners after copy of it was served on the counsel for the Board immediately after arguments were concluded on the next day. The inspection report shows that there were 5 air conditioners of 1.5 tonnes, the total load of which was taken to be 10 KW (at the rate of 2,000 Watts each).

2. On 9.2.2009,. again an STF inspection was carried out in the petitioners premises. This time, it was alleged that there was meter tampering. A report was drawn up which is part of Annexure-C/1 to the counter affidavit of the Board. In the report, it would be seen that the total load was shown to be 14.240 and taken to be 15 KW. In the report, the inspecting authorities are alleged to have tested the meter which showed substantial reduction in meter recording. It was, accordingly, alleged that meter, being tampered, it was a case of theft of electricity in terms of Section 135 of the Electricity Act, 2003 .

3. At this juncture itself, one may note one important aspect of the said report dated 9.2.2009. Here again, it is clearly noted that there were 5 air conditioners of one and a half tonne each (as found in the earlier inspection dated 28.4.2008). But this time its load was assessed at the rate of 2500 Watts each but as per report, the total load was shown as 10,000 Watts as in the past. This I am taking note of because subsequently, while raising bills, authorities have corrected the figure 10,000 to 12.500. Thus, an enhancement of 2500 Watts was done for the same machines which were found in the earlier report and billed accordingly. As later would be seen, petitioners contention would be that because of this enhancement, they have been wrongly assessed at 17 KW instead of 15 KW load found. That makes a substantial difference.

4. Consequent to the said inspection, on 9.2.2009, the meter was removed and Buddha Colony Police Station Case No. 27 of 2009 instituted for an offence punishable under Section 135 of the Act. While lodging the first information report, which is part of Annexure-C/1 to the counter affidavit, it is alleged that because of theft, Board has suffered a loss of about Rs. 6,47,666/-. On 10.2.2009, a provisional assessment bill totalling to Rs 7,08,145/- is served. Alongwith this, a chart of calculation was also served. The two are Annexures-3A and 3B. This provisional bill is as a matter of punitive assessment as allegedly provided under Section 135 of the Act and includes fixed charge of Rs.8,160/- and cost of new meter, Rs. 5,000/- alongwith punitive assessment after adjustment of Rs. 6,94,985.18P. Petitioner filed a writ petition before this Court being CWJC No. 3309 of 2009. While the writ petition was pending, on 8.4.2009, petitioners were again served a similar bill with calculation chart being Annexures-3A and 3B respectively based on assessment of load found at 17 KW. The writ petition was finally disposed of by order dated 30.4.2009 (Annexure-4/A) where in t