JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The CESC Ltd, a distribution licensee operating in West Bengal, has preferred the instant writ petition under article 226 of the Constitution of India, challenging an order dated February 8, 2016 passed by the Appellate Authority under Section 127 of the Electricity Act, 2003.

2. Upon an allegation of theft having been made by the CESC, a complaint was lodged against the private respondent Nos. 2 to 5 and a proceeding initiated under Section 135 of the 2003 Act. A parallel proceeding under Section 126 of the 2003 Act was also initiated against the said private respondents. A provisional order of assessment was made and, thereafter, upon hearing the private respondents, a final order of assessment was passed by the Assessing Officer of the CESC on November 11, 2015, thereby holding that the private respondents were guilty of unauthorised use of electricity.

3. The private respondents, being thus aggrieved, preferred an appeal against such final order under Section 127 of the 2003 Act. The Appellate authority, by its order dated February 8, 2016, disposed of the appeal by holding that the assessment made against the present private respondents was unjustified and the same was quashed and set aside. The petitioner CESC was, however, given liberty to take appropriate action against the appropriate person committing such unauthorised use of electricity, after proper verification of the address.

4. Being dissatisfied with the said order of the appellate authority, the CESC has preferred the instant writ petition.

5. Learned counsel for the petitioner argues that the appellate authority acted in a perverse manner in setting aside the final order of assessment without any concrete reason for doing so. It is submitted that since the assessing authority exercised discretion available to him in law in a particular way on the basis of the materials on record, the appellant authority acted without jurisdiction in quashing it.

6. Learned counsel contends that the scope of adjudication of civil liability under Section 126 is on the basis of “preponderance of probability”. However, the appellate authority proceeded on the premise that no strict proof beyond reasonable doubt was produced by the CESC to incriminate the private respondents.

7. Learned counsel for the CESC places reliance on several photographs of the site of alleged pilferage, along with the complaint filed before the Officer-in-Charge of the Jorasanko Police Station and a seizure list obtained from the alleged site of pilferage to contend that such documents clearly show that the private respondents were guilty of unauthorised use of electricity, including theft.

8. It is submitted that in a proceeding under Section 126 of the 2003 Act, the allegation need not be proved to the hilt. It is submitted that the ‘Best Judgment Rule’ should be applicable to such a case. The accessing officer, who was a part of the inspecting team as per the provisions of law, gave a clear report indicating the involvement of the private respondents in the act of unauthorised use of electricity, which was sufficient to pass the provisional order of assessment. Subsequently, the private respondents appeared in the hearing on the provisional assessment but failed to rebut the evidence produced by the CESC. Hence, the assessing officer acted well within his jurisdiction to pass the final order of assessment on the basis of the provisional assessment.

9. Learned counsel argues that the assessing officer clearly came to the conclusion on the basis of materials on record that the private respondents are residents of premises no. 116/H/1, M. G. Road, Kolkata-700 007. Although it was recorded by the assessing officer that the photographs indicated that the white wire which was used for pilferage entered the said premises into one room of the third floor, the private respondents have not produced any document whatsoever to indicate that they were residents of a different floor.