Point of Law: Electricity - Unauthorized use of electricity - Assessment of electricity charge contemplated in this section is immediately after disconnection but before lodging complaint and that too for the purpose of restoration of supply line of electricity within forty eight hours of such deposit of payment.

JUDGMENT :

Heard Dr. A. Saraf, the learned Senior Counsel assisted by Mr. S. K. Kejriwal, the learned counsel for the petitioner. Also heard Mr. P.N. Goswami, the learned Additional Advocate General, Assam assisted by Mr. I. Kalita, the learned counsel appearing on behalf of the respondent APDCL.

1. The petitioner is the consumer of the respondent Assam Power Distribution Company Ltd. (APDCL) with a connected load to the petitioner’s industry being 1200 KW. That on 01.06.2021, the Inspecting Team of APDCL visited the petitioner’s premises and while replacing the modem, the consumer meter was also checked and seals of meter terminal cover and cabinet box were replaced by new seals. On 09.06.2021, the meter of the petitioner was inspected which was replaced on 22.03.2021. On 09.06.2021 site inspection of metering installation of the petitioner in presence of Central Inspection Team from APDCL Head Quarter Vigilance Wing was done, the metering installation was checked. The meter data was downloaded for further analysis. On opening of the top cover of the CT/PT set bearing serial No. 6766, an external RF circuit was found connected with the CT/PT secondary terminals inside the CT/PT set which was used to interfere with the energy recording by the metering system. On 09.06.2021 itself the power supply was disconnected. Assessment proceeding was initiated followed by provisional assessment order dated 15.06.2021. The provisional assessment bill of Rs. 2,78,95,505.00 for the period of 23.11.2020 to 09.06.2021 was served on the petitioner. On 09.06.2021 a seizure was made whereafter an FIR was lodged by the APDCL team in the Gorchuk Police Station.

2. Assessment proceeding was initiated by the Area Manager for theft related case. The petitioner preferred its representation before the Area Manager against the said proceeding and thereafter the matter was heard on 02.07.2021 and the Assessing Officer issued Final Assessment Order dated 07.07.2021 upholding the provisional assessment bill. Accordingly, the petitioner challenged the legality and validity of the inspection report dated 09.06.2021 including the seizure and observation report, illegal disconnection of power supply on 09.06.2021, Assessment Bill dated 15.06.2021 and the Final Assessment Order dated 07.07.2021.

3. An affidavit-in-opposition was filed by the respondent Nos. 1, 2 and 3 raising the issue of maintainability of the writ petition and the interim prayer made therein. As per the said affidavit-in-opposition it is submitted that in terms of the provision of Section 126 of the Electricity Act, 2003, the provisional assessment dated 15.06.2021 was drawn up and served upon the petitioner. In terms of Section 126 (3) of the Electricity Act, 2003, the petitioner was granted an opportunity to file objections against the said provisional order. Thereafter, the Assessing Officer came to a finding that the petitioner had indulged in “unauthorized use of electricity” under Section 126 of the Act of 2003 as well as “theft of electricity” under Section 135 of the Act. Accordingly vide order dated 07.07.2021, the Assessing Officer confirmed the provisional assessment dated 15.06.2021. It is also stated that the petitioner raised in this writ petition disputed questions of fact and moreover there is an adequate alternative remedy in order to decide the disputed questions of fact under Section 126 of the Act of 2003, Section 127 of the Act, 2003 provides an adequate and effective alternative remedy in the form of an appellate authority against Final Assessment made under Section 126 of the Act, 2003. The writ petitioner is aggrieved on the technical and factual grounds as raised in the writ petition and as such the petitioner is required to file an Appeal under Section 127 of the Electricity Act, 2003. Moreover, pursuant to the FIR dated 09.06.2021 lodged by the APDCL, there is pending a criminal investigation against the petitioner. On perusal of the FIR also reveals a prima facie case