Challenging order dated 15.10.2008 passed in Appeal No. 10 of 2008 whereby, the Appellate Authority has reduced the amount calculated by the Assessing Authority, the present writ petition has been filed.

2. The brief facts of the case are that, electric connection load at the unit of the respondent no. 2 was enhanced from 200 KVA to 500 KVA. On 27.05.2008, the unit of the respondent no. 2company namely, M/s Vaishnavi Steel Industries was inspected. While changing the Modem installed in the energy meter, when it was noticed that the terminal connection was damaged on further inspection, it was found that two plastic seals of top cover of CTPT Combined Meter Unit was found broken. A copy of the inspection report dated 27.05.2008 was served upon the representative of the respondent no. 2. On the basis of the written report of the Assistant Electric Engineer, Mohanpur P.S. Case No. 94 of 2008 was lodged for the offence under Section 135 of the Electricity Act, 2003. A provisional bill for Rs. 87,62,000/was issued to the respondent no. 2, to which it submitted its objection and the final assessment order was passed on 15.07.2008 whereby, loss to the petitioner was determined at Rs. 40,31,840/. The respondent no. 2 moved this Court in W.P.(C) No. 2805 of 2008 which was disposed of vide order dated 13.08.2008 directing the respondent no. 2 to deposit 50% of the assessed amount, first and it was directed to deposit the remaining 50% in two installments. The respondent no. 2 thereafter, filed Appeal No. 10 of 2008 which has been allowed by the impugned order dated 15.10.2008.

3. Mr. Ajit Kumar, the learned Senior Counsel for the petitioner submits that registration of the criminal case for theft of energy at the unit of respondent no. 2 is a matter of record still, the Appellate Authority entertained the appeal preferred by the respondent no. 2. It is further submitted that considering the submission raised on behalf of the respondent-company, W.P.(C) No. 2805 of 2008 was disposed of directing the respondent-company to deposit the total assessed amount however, order dated 13.08.2008 in W.P.(C) No. 2805 of 2008 cannot be construed as conferring jurisdiction upon the Appellate Authority to entertain the appeal of the respondent-company which otherwise is not maintainable.

4. Mr. M.S. Mittal, the learned Senior Counsel for the respondent no. 2M/s Vaishnavi Steel Industries supporting the impugned order dated 15.10.2008 in Appeal No. 10 of 2008 submits that in pursuance of order dated 13.08.2008 in W.P.(C) No. 2805 of 2008 the respondent no. 2 preferred the appeal. The Appellate Authority though erred in taking the period of theft of electricity between the period February, 2008 to May, 2008 which should have been only for 25 days, the respondent no. 2 raises a contention that once a provisional bill under Section 126 of the Electricity Act, 2003 has been served upon the consumer-respondent no. 2 and the same has been revised, the consequence of exercise of jurisdiction by the Assessing Authority under Section 126 would be that the consumer is entitled to prefer appeal in terms of Section 127 of the Act. Relying on a decision in “Kamaljeet Singh Vs. Bihar State Electricity”, reported in 2010 (3) PLJR 514 and Supply Code Regulation 15.8.7 the learned Senior counsel for the respondent no. 2 submits that merely because metering seal has been found broken, it would not lead to an inference of theft of electricity. In “M/s Shyam Lal Iron & Steel Company through one of its Directors Shri Shambhu Lal Shaw Vs. Jharkhand State Electricity Board through its Chairman” reported in 2013(3) JBCJ 356(HC), the Hon'ble Division Bench of this Court has also clarified the issue and held that such cases may be cases of unauthorized use of electricity but not the case of theft of electricity. It is stated that the consumption pattern of respondent no. 2company indicates higher consumption in subsequent months which rose upto 17,000/for the month of Ma