The distinction between Section 126 and Section 135 of the Electricity Act, 2003, and the applicability of civil and criminal jurisprudence to unauthorized use of electricity and theft of electricity, respectively.

JUDGMENT :

(T.S. Sivagnanam, J.)

1. This intra court appeal is directed against the order dated 03.04.2023 in WPA No. 7850 of 2016 filed by the first respondent CESC Limited. The writ petition was allowed and the order passed by the appellate authority dated 08.02.2016 was set aside.

2. We have heard Mr. Tarique Quasimuddin assisted by Mr. Abbas Ibrahim Khan, learned advocates for the appellants and Mr. Subir Sanyal assisted by Mr. Om Narayan Rai and Mr. Debanjan Mukherje, learned advocates for the CESC Limited.

3. The first respondent CESC Limited proceeded against the appellant for unauthorized extension of electricity in respect of the premises bearing no. 116/H/5, M.G. Road. The appellant contended that they are mere tenants in a small portion of the building and it has many other tenants who are occupying the building premises at no. 116/H/1, M.G Road, Kolkata- 700001. The order of provisional assessment was passed on 13.10.2015 stating that the first respondent has come to the conclusion that the unauthorized use of electricity was discovered as direct connection was found from the service cut-out of premises no. 116/M.G. Road and the unauthorizedly abstracted supply was being used at premises no. 116/H/1, M.G. Road and the appellant are the beneficiaries. The details of dehooking drives and the inspection report which was drawn was appended to the provisional assessment order and the appellants were granted liberty to make their submissions.

4. The appellants were also offered an opportunity of being heard in person. The appellant was represented by their advocates and appeared before the assessing authority on 29.10.2015 stating that they have no idea regarding unauthorized obstruction of electricity by means of direct connection and prayed of some relief on the penal amount. Further they stated that some other persons were also involved in unauthorized abstraction of the electricity but no specific name was mentioned. The appellants also filed their written objection dated 28.10.2015 stating that they are residents of premises no. 116/H/1 M.G. Road as tenants and having meters in their names and they are not liable for payment of the excess amount. The appellant denied the photographs captured during the inspection on13.10.2015 stating that they are not the right images of the premises. After hearing the appellants who were represented by advocates, the assessing officer pointed out that the photographs were taken by photographer during the inspection on 13.10.2015 and the photographs clearly indicate the premises where the appellant are residing and were enjoying the electricity by unauthorized direct connection from the cut-out of the adjacent premises no. 116 M.G. Road. Further it was pointed out that a white colour wire is clearly visible creeping on the side wall of the premises no. 116/H/1, M.G. Road and entering into one room of the third floor of the said premises. Thus, the assessing officer concluded that it is crystal clear that the appellants who are residents/occupiers of the premises are involved in such unauthorized abstraction of electricity and accordingly proceeded to assess the electricity charges.

5. Challenging the said order, the appellant filed an appeal before the appellate authority. The appellant authority by order dated 08.12.2016 came to the conclusion that it is really very difficult to ascertain as to whether the appellants had committed such unauthorized use of electricity as alleged and in view of the disputed question of facts with regard to the possession of the premises in question, held that the first respondent CESC Limited failed to make out any prima facie case against the appellant and therefore held that the appellant have not committed any violation in terms of Section 156 of the Electricity Act, 2003. The said order passed by the appellate authority was put to challenge by way of a writ petition by CESC Limited. The writ petition has been allowed. Aggrieved by the same, the appella