By the Court.—Heard Mr. Mayank Agrawal, learned counsel for petitioner at length and Mr. N. Mishra, learned counsel for respondent Nos. 1 and 2.

2. This writ petition is directed against the order of assessment dated 17.3.2012 passed by Executive Engineer, Pashchimanchal Vidyut Vitran Nigam Ltd., Electricity Distribution Division-I, Ghantaghar, Meerut under Section 126/135 of the Electricity Act, 2003 (hereinafter referred to as the ‘Act’) read with paras 8.1 and 8.2 of Electricity Supply Code, 2005 (hereinafter referred as the ‘Code’) making assessment on the ground of theft of electrical energy against the petitioner to the tune of Rs. 26,54,671.

3. It is not disputed by learned counsel for petitioner that the impugned order of assessment is appealable under Section 127 of the Act, 2003. Since there is a statutory remedy initially we were not inclined to entertain this writ petition. Sri Mayank Agrawal, learned counsel however contended that non-observance of the procedural illegality amounts to lack of jurisdiction and further that unless a theft is proved, the jurisdiction to make assessment would not stand conferred upon the Executive Engineer concerned and, hence, it is a case of lack of jurisdiction. He further submitted that well known exception for entertaining the writ petition without relegating a petitioner to avail alternative remedy is where the action/order impugned is in violation of principles of natural justice or fundamental rights or is without jurisdiction. He contended that the case in hand is covered by third exception and, therefore, he should be heard on merits instead of relegating him to avail remedy.

4. He advanced the submissions at great length and took this Court to various documents including checking report, M.R.I. report and other documents which constitute basis of assessment in the case in hand.

5. Since full length arguments have been advanced virtually covering the entire case on merits taking enough time of the Court, we find it appropriate to consider the submissions on merits to find out whether it can be said that impugned order is wholly without jurisdiction or otherwise patently illegal since this would save further time of the Court and the parties shall also got the matter finalised at this stage. Learned Standing Counsel and Mr. N. Mishra, Advocate, appearing for the respondent Nos. 1 and 2 have no objection to this course. They also submitted that since the necessary documents are already on record, they may advance oral submissions and therefore do not propose to file counter-affidavit.

6. Hence, we proceed accordingly.

7. It is contended that there was no theft of electrical energy and no person in common having parlance knowledge of the subject, on the basis of record can come to the conclusion that the petitioner is guilty of theft of electrical energy, hence the impugned order of assessment is patently illegal and without jurisdiction. The Assessing Officer lacked patent jurisdiction and, therefore, it is liable to be set aside. It is further contended that no notice specifying the charges against petitioner was communicated/served upon him and, therefore, the mandatory procedural requirement has not been complied with. He relied upon a Division Bench judgment of this Court in Ashok Kumar and others v. State of U.P. and others, 2008 (6) ADJ 660 (DB). (Paras 58 to 64)

8. Besides some other authorities are also relied upon which we shall discuss later at the appropriate stage.

9. Facts in brief are as under:

10. The petitioner is an industry engaged in manufacturing of desert coolers. He got an electric connection with the sanctioned load of 25 HP. The electrical meter installed at the premise of the petitioner was checked and resealed on 29.6.2007, (sealing certificate dated 29.6.2007 is annexed as Annexure 1 to the writ petition). A surprise checking was made by enforcement squad of respondent No. 1 on 10.12.2007. A copy of the checking report has been filed as Annex