The acquittal of the petitioner in a criminal case under Section 135 of the Electricity Act, 2003, exonerated the petitioner from liability under Section 126. The absence of a final order of assessment and the denial of an opportunity for appeal under Section 127 rendered the writ petition maintainable.

JUDGMENT :

1. The petitioner has sought for a direction for refund of Rs.81,668/- along with interest, that is, the amount paid by the petitioner on account of a provisional bill raised by the West Bengal State Electricity Distribution Company Limited (WBSEDCL) on the allegation of theft.

2. Learned counsel for the petitioner contends that the only allegation made in the provisional bill dated June 18, 2007 was that, allegedly, the petitioner had consumed electricity of an entire commercial premises by bypassing of meter by tapping from the service wire through another PVC wire.

3. In the complaint made before the Inspector-in-Charge, Bankura Police Station, it was also alleged that during inspection it was found that the petitioner was consuming electricity by theft with the help of bypassing device after bypassing the meter. It is argued that theft is a common ingredient between ‘unauthorised use’ of electricity as envisaged in Section 126 of the Electricity Act, 2003 (hereinafter referred to as ‘the 2003 Act’) and Section 135 of the 2003 Act. Since the petitioner was honourably acquitted in connection with the theft case under Section 135, the petitioner is automatically exonerated from liability under Section 126.

4. Since the amount paid by the petitioner pursuant to an order of coordinate Bench in a different writ petition was on account of fifty per cent of the provisional bill, it is submitted that the petitioner is entitled to refund of the entire amount with interest.

5. Learned counsel for the petitioner next contends that no final order of assessment was ever passed by the WBSEDCL in respect of the petitioner’s electricity meter. As such, although the petitioner was given the opportunity to file objection to the provisional assessment order, there was no hearing on the same for the purpose of passing a final order of assessment, thus precluding the petitioner from preferring a challenge under Section 127 of the 2003 Act.

6. It is submitted that Section 154(6) of the 2003 Act contemplates refund in case of excess payment having been made on account of provisional bill. In the present case, since the provisional bill stands obliterated in view of the acquittal of the petitioner on the self-same ground of theft in the criminal case, the petitioner is entitled to such refund.

7. It is contended that no basis, as envisaged under Section 126(5) of the 2003 Act, has been disclosed in the provisional bill for arriving at the quantum of dues, thereby vitiating the said bill.

8. Learned counsel for the petitioner further contends that since the petitioner did not get any opportunity to prefer an appeal under Section 127 of the 2003 Act due to no final assessment order being passed, the writ petition is maintainable under Article 226 of the Constitution of India, in the absence of alternative remedy being available to the petitioner.

9. By distinguishing the judgment reported at (2020) 18 SCC 588 [West Bengal State Electricity Distribution company Limited and others Vs. Orion Metal Private Limited and another], learned counsel submits that it was held therein that two parallel proceedings can proceed under Sections 26 and 135 on the same allegation of unauthorised use of electricity, however, the said judgment reflects a basis of assessing provisional bill under Section 126, which is absent in the present case. Moreover, it was not decided therein as to whether the liability under Section 126 subsists even after acquittal of the consumer in the criminal case under Section 135. In fact, it is contended, there was no occasion for the Supreme Court to consider the effect of exoneration in a proceeding under Section 135.

10. Insofar as the judgment reported at (2012) 8 SCC 108 [Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another Vs. Sri Seetaram Rice Mill] is concerned, it is argued by learned counsel for the petitioner that, in the said case, Section 135 of the 2003 Act did not fall for consider