Assessments in cases of theft of electricity are made under the Bihar Electricity Supply Code, 2007, and are distinct from assessments made for unauthorized use of electricity under Section 126 of the Electricity Act, 1910.

VIKASH JAIN, J.

1. Heard learned Senior Counsel for the petitioners and learned counsel for the respondent no. 3.

2. The present writ petition has been filed against the orders dated 25.02.2010 and 30.08.2011 passed by the Electrical Inspector, Bihar, Patna-cum-Appellate Authority (Respondent No. 2) in Appeal No. 8 of 2010.

3. The short facts of the case according to the petitioner are that the officers of the Bihar State Electricity Board (succeeded by Bihar State Power Holding Company Ltd., hereinafter referred to as 'the Board') inspected the premises of the consumer Sri Sunil Kumar (Respondent No. 3) on 19.11.2009 and found that theft of electrical energy was committed by tapping one of the three phase wires and bypassing the meter. An FIR was lodged under Section 135 of the Electricity Act, 1910 (hereinafter referred to as 'the Act') and the meter seized, removed and sealed along with the wire used for bypassing the meter. A provisional assessment order was passed on 23.11.2009, assessing the loss amount of Rs. 3,81,568/- caused to the Board. The very next day on 24.11.2009, the private respondent no. 3 deposited the loss amount by cheque and further also deposited the required amount of Rs. 1,00,000/- by way of compounding charge for the offence in terms of Section 152 of the Act. Such amount was duly accepted on 24.11.2009 and the provisional assessment attained finality as no objection against the same was made by the respondent no. 3. Accordingly the final assessment was made by order dated 08.01.2010 (Annexure-9) reiterating the provisional assessment. The respondent no. 3 then wrote to the Assistant Electrical Engineer (Rev.) requesting for correction of the bill for the month of December, 2009 raised for Rs. 3,85,808.48 as the petitioner had already made payment of Rs. 3,81,568/- on 24.11.2009 along with Rs. 1,00,000/- towards compounding the offence. Besides, respondent no. 3 preferred Appeal No. 08 of 2010 before the appellate authority (respondent no. 2) contending that the amount of loss calculated at Rs. 3,81,568/- and the allegation of theft of electrical energy was incorrect. The provisional assessment had been made without grant of opportunity of hearing which had then been treated as the final assessment, contrary to the provisions of Section 126(3) of the Act. The appellate authority passed the impugned order dated 25.02.2010 opining that respondent no. 3 ought to be given a further opportunity of hearing. He thus remanded the matter for passing the final assessment order afresh after hearing. Pursuant thereto the final assessment order was passed on 29.05.2010 (Annexure-15) once again reiterating the fact of theft committed by the respondent no. 3 and also the amount provisionally assessed. The appellate authority (respondent no. 2) by the impugned order dated 30.08.2011 allowed the appeal of the respondent no. 3 and directed the petitioner to recalculate the fine payable by the respondent no. 3.

4. Learned counsel for the petitioners submits that the appellate authority has acted wholly without jurisdiction in passing the impugned orders dated 25.02.2010 and 30.08.2011 inasmuch as remedy by way of appeal under Section 127 of the Act is available only in case of assessment made for unauthorised use of electricity under Section 126 of the Act. The instant case involves theft of electrical energy covered under Section 135 of the Act and as such no appeal has been provided against the provisional assessment or final assessment. Moreover, the respondent no. 3 had himself accepted the provisional assessment and duly deposited the amount of loss of Rs. 3,81,568/- as well as the compounding fee of Rs. 1,00,000/- without demur. Having accepted the provisional assessment which was subsequently endorsed in the final assessment, no appeal lay against the same as evident from a bare reading of Section 127(5) of the Act which categorically bars any appeal against final order made with the consent of the parties