IMPORTANT POINT
Sections 126 and 135 of the Electricity Act, 2003 are constitutionally valid, providing distinct frameworks for civil assessments and criminal penalties for unauthorized use and theft of electricity.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The petitioner has preferred a challenge to the vires of Sections 126 and 135 of the Electricity Act, 2003 (hereinafter referred to as “the 2003 Act”). The other reliefs sought are entirely consequential to the same, primarily seeking a quashing of the FIR lodged in connection with the steps taken by the respondent no. 1, West Bengal State Electricity Distribution Company Limited (WBSEDCL) pursuant to the said provisions.

2. Learned counsel for the petitioner argues that Section 45 of the 2003 Act provides for the levy of electricity charges, which includes the actual charges for supply, a fixed charge in addition to the charge and rent or other charges in respect of electric meter or electrical plant provided by the Distribution Licensee. The said Section permits the Distribution Licensee to charge “prices” in accordance with such tariff as fixed from time to time fixed and conditions of the licence.

3. Section 126 starts with the heading “Assessment” and envisages computation of actual electricity charges, which is a compulsory money exaction from the citizen on actuals. While Section 45 contemplates the actual consumption of electricity, which is not a penalty, Section 126 is not a levy but comes within the second stage of compulsory exaction of money, that is, assessment. Such an exaction envisages three stages, levy (power), assessment and recovery. It is argued that Section 126(6) of the 2003 Act is beyond the scope of levy under Section 45, since it provides for a multiplier. Thus, Section 126 is an assessment in excess of levy contained in Section 45 and is thus ultra vires the Act, as it hits Article 14 of the Constitution of India on the ground of arbitrariness.

4. Section 126(5) is a dangerous and impermissible statutory fiction which has a capacity of introducing a hefty multiplier, having a confiscatory effect. Such multiplier can be conveniently relied on, since it is impossible to ascertain the actual period during which the unauthorized use of electricity has taken place.

5. The above situation has the effect of making the provisional assessment ab initio astronomical and impossible to oppose, rendering the right of filing objection and hearing under Section 126(3) ritualistic and farcical, since the operation of a statutory fiction cannot be resisted by objection or hearing. Thus, the appellate remedy under Section 127 is a non-starter, also owing to the pre-condition of deposit of 50 per cent of the assessment amount. In any fiscal law, there are three components - levy, assessment and recovery. A fiscal law is required to be certain. However, there is no guideline given in Section 126 for exercise of the „best judgment?, which bestows unbridled power on the Assessing Officer. The assessment is delegated to executive action, which vitiates the validity of the said provision.

6. Learned counsel appearing for the petitioner argues that the part of Kusum Ingots & Alloys Ltd. v. Union of India and another, reported at (2004) 6 SCC 254, where the Supreme Court held that in view of Article 226(2) of the Constitution, judgments in constructional validity of statutory provisions on Central Statutes rendered by one High Court would be binding on another, is not the correct proposition of law and thus, not binding on the court.

7. Learned counsel contends that the judgments which have dealt with the vires of the provisions-in-question, that is, Sections 126 and 135, do not deal with the issue now raised.

8. Learned counsel for the petitioner cites Natural Resources Allocation, In Re, Special Reference No. 1 of 2012, reported at (2012) 10 SCC 1, to argue that executive action should have clearly defined limits and be predictable.

9. In Atiabari Tea Co. Ltd. v. State of Assam and others, reported at AIR 1961 SC 232, it was held that executive power to tax must be controlled by constitutional provisions.

10. Although not contextually referred to in the arguments, written or o