JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The writ petitioners in all the matters have challenged the vires of Sections 126 and 135 of the Electricity Act, 2003 (hereinafter referred to as “the 2003 Act”).

2. Learned counsel for the petitioners cite several judgments, which will be discussed presently. It is argued that Section 126 (1) provides for a mere ‘provisional’ assessment which, however, is conclusive as to the allegation of theft of electricity against the accused, without granting the accused person any opportunity of hearing. Such serious allegation, which is a stigma and has far-reaching criminal consequences against the accused person as well, is thus examined and decided by the same person who gave the report. There is no trial before a competent judicial forum, with due opportunity of leading evidence and cross-examination being given to the accused. Thus, it is argued, the said section is violative of Articles 19 and 21 of the Constitution of India and is, thus, ultra vires the Constitution.

3. Such assessment, both at the provisional and the final stage, are done by the Assessing Officer, who is generally an employee of the distribution licensee. It is the same officer who submits a report, on inspection, as to the unauthorised use of electricity by the consumer or person concerned and thereafter assesses the amount chargeable as electricity dues. Again, the same officer hears the person concerned and arrives at the final assessment. Thus, it is argued, the Assessing Officer, who is an employee of the licensee, acts as the judge, jury and executioner. The final order is a merely mechanical reiteration of the provisional order of assessment, without any independent application of mind or examination worth the name.

4. Although labelled as assessment ‘orders’, no reasons are given by the assessing officer who, in any event, is an agent of the licensee and is not a competent judicial officer. Assessment ‘bills’ are sent by the licensee which, under no stretch of imagination, qualify as ‘orders’ as contemplated in Section 126, thus rendering the entire process an eye-wash. The ‘reasons’ if any, are mere pretence of reasons - a mechanical rubber-stamp exercise without consideration of relevant documents and evidence.

5. The appeal provided under Section 127 of the 2003 Act against the final order, it is argued by the petitioners, is a farce, since the accused person does not have proper opportunity to represent his case before the first forum.

6. Moreover, the pre-condition of deposit of 50 per cent of the total assessed account, which may be exorbitant and arbitrary, for preferring an appeal under Section 127 renders the said remedy illusory.

7. Learned counsel for the petitioner next argues that Section 135 of the 2003 Act provides for criminal proceedings before a Special Court. However, the definition of ‘theft’ in the said section and that of ‘unauthorised use’ in Section 126 overlap largely, particularly insofar as the allegation of tampering of meter is concerned. As a consequence, the licensees can pick and choose to enforce different penal consequences against persons accused of the same or similar offences at their own sweet whims. The consequences range between payment of huge sums of money and disconnection of electricity, as well as imprisonment and/or fine.

8. Hence, it is argued, Section 135, which provides for the harsher punishment, ought to be struck down as ultra vires.

9. Learned counsel for the petitioners cites several judgments, including Executive Engineer, Southern Electricity Company of Orissa Limited (SOUTHCO) and Another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, Laxmi Chand and Others vs. Gram Panchyat, Kararia and Others, AIR 1996 SC 523, etc., to argue that the extraordinary jurisdiction of the High Court under Article 226 of the Constitution can be exercised in appropriate cases despite availability of an alternative remedy. Whirlpool Corporation’s judgment reported at (1998) 8 SCC 1 is al