This writ application has been filed for quashing the order of assessment dated 24.07.2010, whereby and whereunder, the assessing authority had concluded that petitioner unauthorizedly used electrical energy and thereby he is liable to pay Rs.35,466/- towards energy charge and fix charge.

2. It appears that petitioner had taken electrical of NDS-2 category having sanction load of 4 K.W. In the premises of petitioner, the inspection team of Electricity Board conducted an inspection on 28.5.2010. During the inspection, they found that the petitioner was extracting electricity more than sanctioned contract load, accordingly, a preliminary assessment made. It appears from annexure-2 that the provisional bill on the basis of preliminary assessment served on the petitioner and he was asked to file objection, if any, within 15 days. It further appears from annexure-2 that petitioner has not filed any objection, therefore, final assessment made and it was concluded that petitioner is liable to pay Rs.35, 466/- towards energy charge and fix charge. The said assessment order has been challenged in this case.

3. It is submitted by Sri Dhananjay Kumar Pathak, learned counsel for the petitioner that if connected load in the premises of petitioner exceeds the sanctioned load, then the same will not be treated as unauthorized use of electricity. Sri Pathak relied upon Clause 15.7(III) of the Jharkhand Electricity Supply Code, 2005. Hence, no assessment can be done under Section 126 of the Jharkhand State Electricity Act, 2003. Accordingly, it is submitted that the order of assessment is wholly without jurisdiction.

4. On the other hand, Sri Mukesh Kumar, learned counsel for the respondent Company submits that as per explanation of Section 126 of the Electricity Act, 2003, if petitioner uses electricity by any means not authorized by the concerned authority or licencee, then, the same comes within the purview of unauthorized use of electricity. He, accordingly, submits that since the petitioner used electricity in excess of sanctioned load, therefore, the competent authority has power to make assessment under Section 126 of the Electricity Act, 2003. It is further submitted that the petitioner has not made any objection against the preliminary assessment order. Thus, it will be presumed that the petitioner has waived his right to objection, therefore, now, he cannot challenge the assessment order.

5. Having heard the submissions, I have gone through the record of the case. It is admitted that the connected sanctioned load of petitioner's premises is only 4 K.W. It appears from annexure-1 that in the premises of the petitioner, the inspection team has found that petitioner by using different means was using electricity beyond the sanctioned load i.e., 9 K.W. Thus, the inspection team has concluded that petitioner had unauthorizedly used the electrical energy, hence, he liable to pay the assessed amount.

6. Unauthorized use of electricity has been defined in Explanation-(b) of Section 126 of the Electricity Act, 2003 which runs as under:

(b) “unauthorised use of electricity” means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licencee, or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

[(v) for the premises or areas other than those for which the supply of electricity was authorised.]

7. It is submitted by the learned counsel for the petitioner that the case of petitioner does not come within the purview of any of the Clauses of Explanation-(b). Learned counsel for the petitioner submits that in fact, as per Clause 15.7 (iii) of the Electricity Supply Code where a consumer is billed on demand basis, but the connected load exceeds the sanctioned load, then, it will not be considered as unauthorized use of electricity. Accordingly, it is submitted that the additional load of the petitioner does not