The assessing officer must establish unauthorized use of electricity before issuing a final assessment order, which can be appealed under Section 127 of the Electricity Act, 2003.

JUDGMENT :

KARDAK ETE, J.

1. Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P.K. Bora, learned counsel for the petitioner. Also heard Mr. B. Choudhury, learned Standing Counsel, APDCL, representing all the respondents.

2. By filing this writ petition, the petitioner has challenged the Inspection Report, Seizure and the letter dated 12.04.2017, proceedings arising out of Dibrugarh Special P.S. APDCL Case No. 108/2017 and the final assessment order and bill dated 30.01.2019, issued by the Area Manager, DIRCA, APDCL, Dibrugarh, whereby the petitioner is held to be indulged in malpractice and consequent thereto, a final bill assessment amounting to Rs.65,28,996.00 (Rupees Sixty five lakhs twenty eight thousand nine hundred and ninety six) only is served to the petitioner for payment by affirming the provisional bill issued to the petitioner.

3. The facts of the case, in brief, are that the petitioner is a proprietorship concern having its place of business at Dibrugarh, Assam, engaged in manufacture and sale of Hathi Brand Atta, Maida and Suji and for the purpose, owns a Flour Mill and its transactions/activities are undertaken in the trade name of M/s Ganapati Roller Flour Mills. The petitioner is provided with electricity connection with a load of 285 KW and for the purpose of billing, Meter No. ASE-18844 was installed. The charges for installation of the Meter and CT & PT set were borne by the petitioner and the same were supplied by the respondent authority. The metering installation was inspected from time to time and during such installation, everything was found to be in order. The Meter Reader visits the petitioner’s premises every month and used to record the meter reading. During such visit, nothing adverse whatsoever was found with the seal or the meter.

4. On 12.04.2017, the Inspection team of the respondent authority visited the petitioner’s premises and inspection was conducted and accordingly, inspection report was prepared, which reads as under:

“A routine inspection is done on the consumer premises and on inspection, it is found the paper seal on both sides of the meter bearing S. No. 2803693(L) and 2803692 (R) found cut and re-fixed with glue. So the meter is opened in presence of consumer and found local soldering spot on the CT’s secondary terminals on the PCB and also the steel plate covering the CT’s secondary on the PCB is found missing. So the team considered it as a fit case of tampering of the energy meter. The Area Manager, DIRCA and AGM, DED is requested to do necessary action as per APDCL norms. The CT&PT set cannot be checked as sub-divisional officials cannot provide the ladder because they are busy in restoring power supply work caused by storm damaged.”

5. A Seizure List dated 12.04.2017 was also prepared. It is contended that before leaving the petitioner’s premises, the APDCL authority disconnected the power supply of both the units in sheer violation of Clause 4.5.4 of the Electricity Supply Code and related matters Regulation, 2004 (hereinafter referred to as the Electricity Supply Code) which envisages prior notice of not less than 24 hours before disconnection. It is further contended that the fact that the authority resorted to disconnection of power supply, it can be concluded that the authority projected a case of theft of electricity and not unauthorized use of electricity against the petitioner, in as much as, under the scheme of section 126 of the Electricity Act, 2003, for any unauthorized use of electricity, there is no provision of disconnection of electricity.

6. Thereafter, on the same day i.e. on 12.04.2017, the Assessing Officer issued a letter alleging that the petitioner as well as its sister concern were directly or indirectly involved in the act of malpractice as defined under Clauses 5.A.3.2 of the Electricity Supply Code read with section 50 of the Electricity Act, 2003 with a direction to the petitioner to collect the provisional assessment bill from the office on 13.0