Hon’ble Ashok Bhushan, J.—The petitioner, a consumer of electricity has filed this writ petition challenging the recovery proceedings initiated against him vide citation dated 19.11.2013, for recovery of electricity dues amounting to Rs. 8,49,173/- which electricity dues have been assessed by the respondent No. 4 on the basis of checking report dated 8.3.2011, of the petitioner’s premises.

Counter and rejoinder affidavits have been exchanged between the parties, and with the consent of the learned counsel for the parties, the writ petition is being finally decided.

2. Brief facts which emerge from pleadings of the parties are:

The petitioner had obtained an electric connection. On 8.3.2011, a checking was conducted at the petitioner’s premises and in the checking the petitioner was found indulging in theft of electricity through L.T. Lines without meter. The petitioner was found utilising electricity for commercial purpose. An F.I.R. was lodged against the petitioner on 8.3.2011, under Section 135 of the Electricity Act, 2003 (hereinafter called the “Act, 2003”). On the basis of the F.I.R. lodged, a charge-sheet was submitted and Case Crime No. 53/2011, was registered against the petitioner which is pending trial in Case No. 42/2011 before the Special Judge, E.C. Act, Allahabad. A provisional assessment notice dated 23.5.2011, proposing an assessment of Rs. 8,49,173/- against the petitioner was sent to the petitioner by registered post. A final assessment order dated 21.6.2013, has been issued to the petitioner by the Executive Engineer observing that since the petitioner did not file any objection against the provisional assessment dated 23.5.2011, the assessment is being finalised. A citation dated 19.11.2013, has been issued against the petitioner for recovery as arrears of land revenue of the aforesaid amount, against which the writ petition has been filed by the petitioner.

3. We have heard Shri Ved Prakash Mishra, learned counsel for the petitioner, Shri Mahboob Ahmad, for the respondent No. 4 and the learned Standing Counsel for the respondent Nos. 1 to 3.

Shri Ved Prakash Mishra, learned counsel for the petitioner, in support of the writ petition raised following submissions:

(1) There being allegation of theft of electricity against the petitioner and an F.I.R. having been lodged under Section 135 of the Act, 2003, the respondent No. 4 had no jurisdiction to make any assessment under Section 126 of the Act, 2003. When allegations of theft of electricity have been made against the petitioner under Section 135 of the Act, 2003, the civil liability is to be determined only by the Special Court as required under Section 154 of the Act, 2003. In the cases covered by Section 135 of the Act, 2003, provisional assessment and final assessment under Section 126 of the Act, 2003 is not contemplated, hence the entire recovery proceedings are without jurisdiction.

(2) The provisions of Section 126 of the Act, 2003 are not applicable in the cases of theft of electricity under Section 135 of the Act, 2003, more so, when the F.I.R. has been lodged and trial is pending before the Special Court. The respondents can realize any electricity charges only after civil liability of the petitioner is determined by the Special Court in the trial pending before the Special Court.

(3) The recovery proceedings against the petitioner is barred by Section 56 (2) of the Act, 2003.

(4) No notice of provisional assessment or the order of final assessment has been served on the petitioner. The provisional assessment notice having been issued on 23.5.2011, there was no occasion for passing a final assessment order on 21.6.2013 i.e. after two years, whereas under Section 126 of the Act, 2003, the final assessment was to be made within one month.

4. Shri Mahboob Ahmad, learned counsel appearing for the respondent No. 4 refuting the submissions of the learned counsel for the petitioner submits that the assessment under Section 126 of the Act, 2003