Dakshin Gujarat Vij Company Limited vs Vaibhav Metal Crusher
- Court
- Supreme Court
REPORTABLE
2026 INSC 1157
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. of 2026
(Arising out of Special Leave to Appeal (C) No. 17868/2024)
DAKSHIN GUJARAT VIJ COMPANY
LIMITED & ANR.
…APPELLANT(S)
VERSUS
VAIBHAV METAL CRUSHER …RESPONDENT
WITH
CIVIL APPEAL No. of 2026
(Arising out of Special Leave to Appeal (C) No. 8778/2025)
PASCHIM GUJARAT VIJ COMPANY
LIMITED & ANR. …APPELLANT(S)
VERSUS
JAMANBHAI NANAJIBHAI BHUVA …RESPONDENT
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
2. These two appeals raise common questions of law, therefore,
Signature Not Verified
with the consent of the learned counsel for the parties, they
Digitally signed by
CHETAN ARORA
Date: 2026.10.26
17:11:27 IST
Reason:
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 1 of 46
have been heard together and are being decided by this
common judgment.
3. For a clear understanding of the factual controversy
involving these two appeals, we propose to notice the facts
of each appeal separately.
Civil Appeal arising out of Special Leave Petition (Civil)
No. 17868 of 2024
4. The relevant facts of the appeal arising from SLP (C)
No.17868 of 2024 are:
(i) The first respondent, namely, M/s Vaibhav Metal Crusher,
was accused of an offence punishable under Section 135 of
the Electricity Act, 2003 . After being made accused, on
03.01.2024, a notice, titled as a supplementary bill, was
issued to it by the distribution licensee (i.e., the appellant
herein), raising a demand of Rs. 92,99,077.55 towards theft
of electricity, and Rs. 23,45,845 towards compounding
charges. The notice stated that if the said amount along
with compounding charges is not paid, prosecution under
Section 135 of the 2003 Act would be launched.
2003 Act
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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(ii) Aggrieved by the aforesaid notice-cum-bill, the first
2
respondent filed an application under Article 226 of the
Constitution of India before a Single Judge Bench of the
3
High Court . On 12.02.2024, the learned single Judge,
following an earlier decision of the High Court in Letters
Patent Appeal (LPA) No. 1445 of 2023 passed an interim
order thereby permitting the first respondent (writ applicant
therein) to deposit 50 percent of the bill amount including
reconnection charges, and directed the distribution licensee,
upon such deposit, to reconnect the electricity connection.
(iii) Against the aforesaid interim order, the distribution
licensee (‘the appellant’ herein) filed LPA No. 592 of 2024,
inter alia
, on the following grounds:
(a) Direction to reconnect on deposit of 50 percent of
the supplementary bill amount is wholly
unwarranted as the demand is in respect of theft of
electricity.
(b) Prior opportunity of hearing is not required in
raising a demand for theft of electricity.
2
2 Special Civil Application No.1183 of 2024
3
3 The High Court of Gujarat at Ahmedabad
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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(c) The learned single Judge failed to appreciate that
Special Court alone has the power to determine civil
liability under Section 154(5) and 154(6) of the
2003 Act, therefore, writ petition is not the
appropriate remedy.
(iv) The Division Bench of the High Court entertained the
appeal, called for the record of the writ application and
disposed of the appeal as well as the writ application vide
impugned order dated 25.06.2024. The operative portion of
the said order is extracted below:
“21. We, therefore, dispose of the writ petition with the
observation that the petitioner shall file a reply to the
notice dated 03.01.2024 wherein computation towards
energy consumption on the allegation of theft of
electricity has been made and demand has been raised in
the shape of Supplementary Bill. As the petitioner has
made allegations with regard to the checking report and
the laboratory tests of the meter, it is open for him to
raise this issue before the competent authority.
22. It is, thus, provided that the petitioner would be free
to raise all objections to the notice stated 03.01.2024
wherein the assessment towards energy consumption has
been made on the allegations of theft of electricity. In
case, the petitioner submits a reply within the period of
two weeks along with the copy of this order, before the
Executive Engineer concerned, he shall be under
obligation to deal with all points of objections raised by
the petitioner before proceeding further. The
Supplementary Bill dated 03.01.2024 raised by the
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 4 of 46
respondent shall be subject to the decision to be taken by
the Executive Engineer under the above directions.
23. Insofar as the deposits made by the petitioner under
the directions issued by this court in the judgment and
order dated 12.02.2024, we provide that the said deposits
would also be subject to the decision of the Executive
Engineer to be taken in compliance of the above
directions, which shall be taken as early as possible
preferably within the period of three weeks from the date
of the receipt of reply. As regards the direction issued by
the learned single judge in the order impugned for
reconnection of electricity, the same is being kept subject
to the fresh decision of the Executive Engineer.
24. However, in case, the decision goes against the
petitioner, the petitioner would have a remedy to file
appeal under Section 127 of the Electricity Act, 2003, in
view of the observation made by us in the judgment and
order dated 25.04.2024 noted hereinbefore. In that
eventuality, the deposits made by the petitioner under
the judgment and order dated 25.04.2024 passed by the
learned Single Judge shall have to be adjusted towards
the deposits to be made by the petitioner to maintain the
appeal under Section 127 of the Electricity Act, 2003”
Civil Appeal arising out of Special Leave Petition (Civil)
No. 8778 of 2025
5. The facts of the appeal arising from SLP (C) No.8778 of 2025
are:
(i) Jamanbhai Nanajibhai Bhuva (the sole respondent
4
herein) filed writ application before Single Judge
Bench of the High Court questioning the
supplementary bill dated 01.06.2023 raised by the
4
4 Special Civil Application No.13655 of 2023
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 5 of 46
distribution licensee (‘the appellant’ herein) in respect
of theft of electricity. The learned single Judge
vide
entertained the writ application and, order dated
23.01.2024, directed the writ applicant to deposit 50
percent of the demanded amount within four weeks,
whereupon recovery of the balance amount would
remain stayed, and gave liberty to the writ applicant to
apply for a fresh connection, upon which, the
distribution licensee was directed to process the
application within two weeks and provide estimate for
the connection and, on deposit of the estimated
amount, to provide connection within next two weeks.
The learned single Judge also directed that fresh
connection shall not be delayed, or the application
shall not be rejected, only on the ground that there are
arrears standing against the premises in question.
(ii) Aggrieved by the order of the learned single Judge,
LPA No. 474 of 2024 was filed by the distribution
licensee (i.e., appellant herein) before the Division
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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Bench of the High Court, inter alia , on the following
grounds:
(a) Direction to reconnect on deposit of 50 percent
of the demand raised was wholly unjustified as
the demand was raised on account of theft of
electricity.
(b) Before raising the demand, opportunity of
hearing need not be provided to a consumer
accused of electricity theft.
(c) The learned single Judge had failed to
appreciate that Special Court has the power to
determine civil liability under Section 154(5)
and 154(6) of the 2003 Act, therefore, the writ
petition under Article 226 is not the
appropriate remedy.
(iii) The Division Bench after noticing two decisions of
this Court, namely, West Bengal State Electricity
Distribution Company Ltd. and Ors. v. M/s. Orion
5
Metal Pvt. Ltd. & Anr. and Southern Electricity
Supply Company of Orissa Limited (SOUTHCO) &
5
5 (2020) 18 SCC 588
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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6
Anr. v. Sri Seetaram Rice Mill remitted the matter
back to the learned single Judge, vide impugned order
dated 25.04.2024, with a direction that the learned
single Judge shall pass a fresh order.
6. We have heard Shri Ranjit Kumar, learned senior counsel for
the appellant (the distribution licensee); and Shri Raghenth
Basant, for the respondent (the consumer), in both the
appeals.
Submissions on behalf of the appellant:
On behalf of the appellant it has been submitted:
7.
(i) Part XIV of the 2003 Act deals with offences and
7
penalties. Sub-section (1) of Section 135 delineates the
circumstances in which theft of electricity takes place.
6
6 (2012) 2 SCC 108
7
7 Section 135. Theft of electricity - (1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or
service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other
device or method which interferes with accurate or proper registration, calibration or metering of electric current
or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so
damaged or destroyed as to interfere with the power or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized,
so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to
three years or with fine or with both:
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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8
Sub-section (1A) of Section 135 provides that the
licensee or supplier, as the case may be, may, upon
detection of such theft of electricity, immediately
disconnect the supply of electricity. The third proviso
to sub-section (1A) of Section 135 provides for a right
to apply for restoration of supply of electricity on
deposit or payment of the assessed amount or
electricity charges in accordance with the provisions of
the Act.
(ii) The assessment as envisaged under sub-section
(1A) of Section 135 is different from one under Section
8
8 Sub-section (1A) of Section 135 – Without prejudice to the provisions of this Act, the licensee or supplier, as the case
may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or
any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall
disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating
to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such
disconnect:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity
charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as
referred to in the second proviso to this clause., restore the supply line of electricity within forty-eight hours of such deposit
or payment.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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9
126 and is, therefore, not one which is subject to an
10
appeal under Section 127 of the 2003 Act.
(iii) Besides, the assessment as contemplated under
the third proviso to sub-section (1A) of Section 135 is
for the limited purpose of reconnection in cases of
9
9 Section 126. Assessment. - (1) If on an inspection of any place or premises or after inspection of the
equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by
any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of
electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such
person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in
charge of the place or premises in such manner as may be prescribed.
(3) The person on whom an order had been served under sub-section (2), shall be entitled to file objections, if
any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable
opportunity of hearing to such person, pass a final order of assessment, within 30 days from the date of service
of such order of provisional assessment, of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the
assessed amount with the licensee within seven days of service of such provisional assessment order upon
him. (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place,
the assessment shall be made for the entire period during which such unauthorized use of electricity has taken
place and if, however, the period during which such unauthorized use of electricity has taken place cannot be
ascertained, such period shall be limited to a period of 12 months immediately preceding the date of
inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the
relevant category of services specified in sub-section (5).
Explanation. - For the purposes of this section,-
(a) “Assessing officer” means an officer of a State Government or Board or licensee, as the case may
be, designated as such by the State Government;
(b) “Unauthorized 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 licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorized; or
(v) for the premises or areas other than those for which the supply of electricity was
authorized.
10
10 Section 127. Appeal to appellate authority.- (1) Any person aggrieved by the final order made under
section 126 may, within 30 days of the said order, prefer an appeal in such form, verified in such manner and be
accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be
prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount
equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and
documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties
and pass appropriate order and send copy of the order to the assessing authority officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be
final.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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disconnection consequent to electricity theft; therefore,
the benefit of sub-section (3) of Section 126, that is the
right to file an objection before the Assessing Authority
against such provisional assessment, is not available.
Thus, the High Court fell in error by giving liberty to
the writ applicant to file objection to the
supplementary bill which, in effect, was a provisional
demand raised for the purposes of reconnection.
Likewise, the High Court erred in giving right of appeal
to the consumer against such assessment.
(iv) Sub-section (4) of Section 127 of the 2003 Act
provides that the order of the Appellate Authority
referred to in sub-section (1) passed under sub-section
(3) of Section 127 shall be final. As a corollary thereof,
if the benefit of appeal is provided to the consumer
charged with theft, then the order passed in appeal
would attain finality and the provisions of sub-section
(5) of Section 154 of the 2003 Act, which empowers the
(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with
the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount,
shall be liable to pay, on the expiry of 30 days from the date of order of assessment, an amount of interest at
the rate of 16% per annum compounded every six months.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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Special Court to determine the civil liability of a
consumer or person, in terms of money, guilty of
committing theft of energy, would be rendered
nugatory.
8. In a nutshell, the submission on behalf of the appellant is
that provisional assessment under Section 126(1) for
unauthorized usage of electricity and provisional
assessment for theft are made in different circumstances
and, therefore, cannot be equated with each other. In case of
assessment for unauthorized usage of electricity, the
consumer has a right to file an objection, and thereafter an
appeal; whereas in the case of theft, the consumer has to
suffer disconnection, though on deposit/ payment of the
entire assessed amount the supply would have to be
restored, and such assessment is subject to the
determination of civil liability by the Special Court under
sub-section (5) of Section 154. In consequence, the
argument is, in a case of theft of electricity, the High Court
should not in a routine manner direct for restoration of
electricity supply on mere deposit of 50 percent of the
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 12 of 46
demanded amount, and, further, it should not allow filing of
objection, or appeal, against such demand.
Submissions on behalf of respondent(s)
9. Per contra , on behalf of the respondents it is submitted that
the third proviso to sub-section (1A) of Section 135 confers
on the consumer a right to seek restoration of the electricity
supply on deposit or payment of the assessed amount, or
electricity charges, in accordance with the provisions of the
2003 Act. Such restoration is without prejudice to the right
of the licensee or supplier to lodge the complaint. In the
absence of any provision, other than Section 126, for
assessment, the expression “the assessed amount ” used in
the third proviso to sub-section (1A) of Section 135 must be
construed as the amount assessed in accordance with the
provisions of Section 126 of the 2003 Act.
10. It is submitted on behalf of the respondents that an appeal
is continuation of the original proceedings; hence, the
expression “the assessed amount ” would include the amount
determined on an appeal, if any, filed against the
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 13 of 46
assessment. Therefore, the High Court was justified in
giving a direction to the competent authority to make an
assessment after considering the objection to the
supplementary bill, subject to final determination in an
appeal. The order of the High Court being just and proper
does not warrant interference.
11. It is further submitted on behalf of the respondents that
sub-section (4) of Section 127 of the 2003 Act, though
attaches finality to the assessment, does not in any way
render the provisions of Section 154(5) of the 2003 Act
nugatory. Because in a case where complaint is filed for
criminal prosecution, the finality attached to the amount
assessed is qua restoration of electricity supply and it
remains subject to determination of civil liability under sub-
section (5) of Section 154. In those circumstances, it is
urged that these appeals are misconceived and are liable to
be dismissed.
Discussion
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 14 of 46
12. Before we address the rival submissions it would be useful
to survey the relevant provisions of the 2003 Act and the
Gujarat Electricity Regulatory Commission (Electricity
11
Supply Code and Related Matters) Regulations, 2015 ,
which has been notified by the Gujarat Electricity
Regulatory Commission in exercise of powers conferred
upon it under Section 181(2)(x) read with Section 50 of the
2003 Act and Section 42(1)(b) of the Gujarat Electricity
Industry (Reorganization and Regulation) Act, 2003.
Relevant Provisions of the 2003 Act, the Removal of
Difficulty Order & the Supply Code
13. Section 126(1) of the 2003 Act provides that if on inspection
of any place or premises or after inspection of the
equipment, gadgets, machines, devices found connected or
used, or after inspection of records maintained by any
person, the assessing officer comes to the conclusion that
such person is indulging in unauthorized use of electricity,
he shall provisionally assess to the best of his judgment the
electricity charges payable by such person or by any other
person benefited by such use. Sub-section (2) thereof
11
11 Supply Code, 2015
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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provides that the order of provisional assessment shall be
served upon the person in occupation or possession or in
charge of the place or premises in such manner as may be
prescribed. Sub-section (3) provides that the person on
whom an order has been served under sub-section (2) shall
be entitled to file objections, if any, against the provisional
assessment before the assessing officer, who shall, after
affording a reasonable opportunity of hearing to such
person pass a final order of assessment. The explanation
defines ‘assessing officer’ and ‘unauthorized use of
electricity’. According to the explanation, “assessing officer”
means an officer of a State Government or Board or
licensee, as the case may be, designated as such by the
State Government; and “unauthorized use of electricity”
means the usage of electricity- (i) by any artificial means; or
(ii) by a means not authorized by the concerned person or
authority or licensee; or (iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of
electricity was authorized; or (v) for the premises or areas
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 16 of 46
other than those for which the supply of electricity was
authorized.
14. Section 127 provides for appeal to the appellate authority.
Sub-section (1) of Section 127, inter alia , provides that any
person aggrieved by the final order made under Section 126
may, within 30 days of the said order, prefer an appeal in
such form and manner as may be specified by the State
Commission to an appellate authority as may be prescribed.
Sub-section (2) of Section 127, inter alia , provides that no
appeal against an order of assessment under sub-section (1)
shall be entertained unless an amount equal to half of the
assessed amount is deposited in cash or by way of bank
draft with the licensee. Sub-section (3), inter alia , provides
that the appeal shall be disposed of by the Appellate
Authority after hearing the parties. Sub-section (4), inter
alia , provides that the order of the Appellate Authority
passed under sub-section (3) shall be final. Sub-section (5)
provides that no appeal shall lie to the Appellate Authority
against the final order made with the consent of the parties.
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Sub-section (6), inter alia , provides for the liability to pay
interest on failure to make payment of the assessed amount.
15. Section 135 specifies certain acts that would constitute theft
of electricity if committed dishonestly. Sub-section (1A) of
Section 135 empowers the licensee or supplier, as the case
may be, to disconnect the supply immediately upon
detection of such theft of electricity. The third proviso to
sub-section (1A) provides that the licensee or supplier, as
the case may be, on deposit or payment of the assessed
amount or electricity charges in accordance with the
provisions of the Act, shall, without prejudice to the
obligation to lodge the complaint as referred to in the second
proviso, restore the supply line of electricity within 48 hours
of such deposit or payment. Importantly, the second proviso
to sub-section (1A) of Section 135 obligates the licensee or
supplier to lodge complaint in writing relating to the
commission of such offence in the police station concerned
within 24 hours from the time of such disconnection.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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16. Section 152 of the 2003 Act provides for compounding of
offences. According to it, notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (CrPC),
the Appropriate Government or any officer authorized by it
in this behalf shall accept from any consumer or person who
committed or who is reasonably suspected of having
committed an offence of theft of electricity, punishable
under the Act, a sum of money by way of compounding of
the offence as specified in the Table below:
TABLE
Nature of service Rate at which the sum of money for
compounding to be collected per Kilowatt
(KW)/Horse Power (HP) or part thereof for
Low Tension (LT) supply and per Kilo Volt
Ampere (KVA) of contracted demand for High
Tension (HT)
1 2
1. Industrial Service Twenty thousand rupees;
2. Commercial
Service
Ten thousand rupees;
3. Agricultural
Service
Two thousand rupees;
4. Other Services Four thousand rupees:
Provided that the Appropriate Government may, by notification in the
Official Gazette, amend the rates specified in the Table above.
Sub-section (3) of Section 152 provides that acceptance of
the sum of money for compounding an offence in
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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accordance with sub-section (1) shall be deemed to amount
to an acquittal within the meaning of Section 300 of CrPC.
17. Section 151 of the 2003 Act states that no court shall take
cognizance of an offence punishable under the Act except
upon a complaint in writing made by the Appropriate
Government or Appropriate Commission or any of their
officer authorized by them or a Chief Electrical Inspector or
an Electrical Inspector or licensee or the generating
company, as the case may be. The proviso to Section 151
states that the Court may also take cognizance of an offence
punishable under the Act upon a report of a police officer
filed under Section 173 of CrPC.
18. Section 153 of the 2003 Act provides for constitution of
Special Courts. Section 154 provides for the procedure and
power of Special Courts. Sub-section (1) of Section 154
provides that notwithstanding anything contained in CrPC,
every offence punishable under Sections 135 to 140 and
Section 150 shall be triable only by the Special Court within
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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whose jurisdiction such offence has been committed. Sub-
section (5) of Section 154 provides:
“The Special Court shall determine the civil liability
against a consumer or a person in terms of money for
theft of energy which shall not be less than an amount
equivalent to two times of the tariff rate applicable for a
period of twelve months preceding the date of detection of
theft of energy or the exact period of theft if determined
whichever is less and the amount of civil liability so
determined shall be recovered as if it were a decree of
civil court”.
Sub-section (6) of Section 154 provides:
“In case the civil liability so determined finally by the
Special Court is less than the amount deposited by the
consumer or the person, the excess amount so deposited
by the consumer or the person to the Board or licensee
or the concerned person, as the case may be, shall be
refunded by the Board or licensee or the concerned
person, as the case may be, within a fortnight from the
date of communication of the order of the Special Court
together with interest at the prevailing Reserve Bank of
India prime lending rate for the period from the date of
such deposit till the date of payment”.
Explanation to Section 154 reads:
“For the purposes of this Section, “civil liability” means
loss or damage incurred by the Board or licensee or the
concerned person, as the case may be, due to the
commission of an offence referred to in sections 135 to
140 and 150” .
19. Section 183 confers power on the Central Government to
remove difficulties. Sub-section (1) of Section 183 provides:
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 21 of 46
“If any difficulty arises in giving effect to the provisions
of this Act, the Central Government may, by order
published, make such provisions not inconsistent with
the provisions of this Act, as may appear to be necessary
for removing the difficulty:
Provided that no order shall be made under this Section
after the expiry of two years from the date of
commencement of this Act.”
20. In exercise of the power conferred upon the Central
Government by Section 183 of the 2003 Act, The
Electricity (Removal of Difficulties) Order, 2005 was
notified and published in the Official Gazette on
08.06.2005. Paragraph 2 of the said Order reads as under:
“Inclusion of measures to control theft in Electricity
Supply Code:
(1) The Electricity Supply Code as specified by the
State Commission under Section 50 of the Act shall also
include the following, namely:
(i) method of assessment of the electricity charges
payable in case of theft of electricity pending
adjudication by the appropriate court;
(ii) disconnection of supply of electricity and removing
the meter, electric line, electric plant and other
apparatus in case of theft or unauthorized use of
electricity; and
(iii) measures to prevent diversion of electricity, theft or
unauthorized use of electricity or tampering, distress
or damage to electrical plant, electronic lines or meter.
The above provisions in the Electricity Supply Code
(2)
shall be without prejudice to other rights of the licensee
under the Act or any other applicable laws to recover the
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
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sum due or to protect the assets and interests of the
licensee. ”
21. Likewise, in exercise of the powers conferred by Section
181(2)(x) read with Section 50 of the 2003 Act and Section
42(1)(b) of the Gujarat Electricity Industry
(Reorganization and Regulation) Act, 2003 , and all
powers enabling it in that behalf, the Gujarat Electricity
Regulatory Commission (for short, the State Commission)
made the “Supply Code, 2015”. Para 2.3 of the Supply Code
carries the definition clause. Few definitions relevant to our
purpose are reproduced below:
In this Code, unless it is repugnant to the context:
“
2.3(7) ‘Assessing Officer’ refers to an officer designated as
Assessing Officer by the State Government of Gujarat
under provisions of Section 126 of the Act;
2.3(8) ‘Authorised Officer’ refers to an officer designated
as Authorised Officer by the Commission or the State
Government, as the case may be, under provisions of
Section 135 of the Act.”
Para 7 of the Supply Code deals with theft of electricity.
Para 7.1 of the Supply Code provides:
“Whenever a case of theft of energy is detected on
inspection by the Authorized Officer, the Assessing
Officer shall carry out the assessment, in accordance
with the procedure as laid down in the sections below:
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 23 of 46
Paras 7.2 to 7.5 deals with the procedural aspects which
may not be relevant here. Para 7.7 of the Supply Code
provides:
“The Assessing Officer shall assess the energy
consumption as per the assessment formula given in
Annexure IV to this Code, for the entire period during
which such theft of electricity has taken place. If,
however, the period during which such theft of electricity
has taken place cannot be ascertained, such period shall
be limited to 12 months immediately preceding the date
of inspection. The period of assessment may be arrived at
after taking into consideration the following guidelines or
in combination thereof:
(1) Actual period from the date of commencement
of supply to the date of detection of theft;
(2) Actual period from the date of replacement of
component of metering system in which the
evidence is detected to the date of detection of
theft;
(3) Actual period from the date of previous
checking of installation to date of detection of
theft;
(4) Meter Reading Instrument data should be
considered wherever available.
(5) Based on the valid document produced by the
accused person.”
22. Para 7.12 deals with assessment. It provides:
“Where it is established that there is a case of theft of
energy, the Assessing Officer shall assess the energy
consumption as per the assessment formula given in
Annexure IV to this Code. The period of assessment may
be arrived at as provided in Clause 7.7 of this Code. The
assessment shall be twice the applicable tariff. The
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 24 of 46
assessment order shall be served to the person under
proper receipt.”
23. In respect of unauthorized use of electricity, there are
separate provisions in the Supply Code. Paras 7.24 to 7.30
govern the procedure for booking a case for unauthorized
use of electricity. Clause 7.31 provides for notice to the
consumer. It reads thus:
“If the Assessing Officer suspects that the unauthorized
use of electricity has taken place, he shall serve a
provisional assessment order assessed as per clauses
7.40 and 7.41 of this Code along with a mention of time,
date and place at which the objection on the assessment
order has to be submitted and the designation and the
person to whom it should be addressed.”
24. Para 7.34 of the Supply Code provides that the consumer
shall submit his objection within seven days of receipt of
provisional assessment order to the concerned officer
mentioned in Clause 7.31 of the Code.
25. Para 7.36 provides for hearing on consumer’s objection.
Clause 7.36 reads thus:
“Within 7 days from the date of submission of the
consumer’s objections, the licensee shall arrange a
hearing with the consumer.”
26. Para 7.38 provides that if a consumer submits adequate
evidence proving that unauthorized use of electricity is not
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 25 of 46
committed, further proceedings shall be discontinued and
case of unauthorized use of electricity shall be dropped
immediately.
27. Para 7.39 provides that if after considering consumer’s reply
and submissions, the Assessing Officer concludes that there
is a case of unauthorized use of electricity, the energy
consumption shall be assessed taking into consideration the
following:
“7.40 The Assessing Officer shall assess the energy
consumption considering the following:
(1) Period of assessment: If the Assessing Officer reaches
to the conclusion that unauthorized use of electricity has
taken place, he shall take into account the following and
arrive at the least period (duration) of unauthorized use
of electricity:
(a) for the period of twelve months;
(b) for the period from the date of previous
inspection if any by the licensee’s officer to the date
of detection from the service connection to the date
of detection;
(c) wherever electronic meters are installed and the
load curves are studied periodically, the period of
unauthorized use of electricity could be limited to
the exact period as could be determined
scientifically;
(d) based on the valid documents produced by the
accused person.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 26 of 46
(2) Assessment charge: The assessment for units
assessed as per Clause 7.41 of the Code shall be done on
the basis of applicable tariff and in accordance with the
Electricity (Amendment) Act, 2007 and any subsequent
amendments, excluding the consumption recorded by the
meter or already billed during the assessment period at
applicable tariffs.
(3) If a consumer is found indulging in more than one act
of unauthorized use of electricity, the charges payable by
the consumer in respect of each such unauthorized use
shall be separately assessed and billed accordingly.”
28. Para 7.43 of the Supply Code provides that the order of
final assessment shall be served upon the person in
occupation or possession or in-charge of the place or
premises in such manner as may be prescribed in Gujarat
Electricity (Manner of Service of Provisional Assessment
Order) Rules, 2004. Clause 7.44 provides that any person
served with the order of final assessment may accept such
assessment and deposit the assessed amount with the
licensee within thirty days of service of assessment order
upon him. It further provides that the final order should
contain the address of the appellate authority to whom the
person can file appeal against the final order served upon
him. Clause 7.45 provides that any person aggrieved by the
final order served by the Assessing Officer may, within thirty
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 27 of 46
days of the said order, prefer an appeal in such form,
verified in such manner and be accompanied by such fee as
specified by the GERC (Procedure for filing Appeal before the
Appellate Authority) Regulations, 2005, to an Appellate
Authority. Clause 7.52 provides that in case the amount
payable as determined by the appellate authority is less
than the amount already deposited by the person, the
excess amount shall be refunded by adjustment in the bills
of the immediately succeeding months along with interest at
the rate of 16 percent per annum compounded every six
months from the date of such excess deposit till the date of
actual adjustment.
29. A survey of the relevant provisions of the Supply Code, 2015
would indicate that in a case of theft of electricity, the
Assessing Officer is required to use the same formula to
make assessment as is to be used to make assessment for
unauthorized use of electricity. The said formula is provided
in Annexure IV of the Code. The same is extracted below:
“Assessment of Energy in cases of Theft/Unauthorized
use of electricity
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 28 of 46
1. The assessment formula for calculation of the
consumption due to theft of electricity shall be as under:
Units assessed = L x H x F
Where,
L = Load (Connected load found in the consumer’s
premises during the course of inspection) in kW; In case
of demand-based consumers: L in kW is the 75% of total
connected load of the consumers at the time of inspection
or the contracted demand whichever is higher.
H = Number of hours of the [days] of the period
considered as per Clause 7.7 of the [GERC (Electricity
Supply Code and Related Matters) Regulations, 2015.]
F = Load factor, which shall be taken for different
categories of use as given below:
Sr.
No.
Particulars Usage Load factor
1. High Tension
Industries, Railway
traction and High
Tension Agriculture
Continuous
process
100%
I Shift - (8 Hrs.) 30%
II Shift – (16 Hrs.) 60%
III Shift – (24
Hrs.)
90%
2. High Tension – Non-
residential
50%
3. High Tension-
Residential
13%
4. Low Tension
Industrial
Continuous
process
100%
I Shift – (8 Hrs.) 25%
II Shift – (16 Hrs.) 38%
III Shift – (24
Hrs.)
75%
5. Low Tension – Non-
residential
45%
: Addition: Added word “days” vide GERC (Electricity Supply Code and Related Matters)
(First Amendment) Regulations, 2016, Notification No. 6 of 2016 came into effect from
23.11.2016.
: Addition: Added vide GERC (Electricity Supply Code and Related Matters) (First
Amendment) Regulations, 2016, Notification No.6 of 2016 came into effect from 23.11.2016.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 29 of 46
6. Low Tension –
Residential
Appliances other
than air-
conditioning
equipments
13%
Air-conditioning
equipments –
Feb- Oct.
50%
Air-conditioning
equipments –
Nov-Jan.
0%
[7. Agriculture-Metered
(a) Consumer
25%
getting power
supply from
agriculture
dominant
feeder
(b) Consumers
50%
getting power
supply from
other than
agriculture
dominant
feeder.
8. Water supply and
sewage pumping
50%
9. Streetlight/Public
lighting
50%
10. Temporary Power
Supply
50%
[11. Direct theft – For all
categories of
consumers
1.25 times the
load factor for
relevant consumer
categories as per
Sr. Nos. 1 to 10
above, subject to
maximum100%]
: substituted vide GERC (Electricity Supply Code and Related Matters) (First Amendment)
Regulations, 2016, Notification No. 6 of 2016 came into effect from 23.11.2016. Prior to
substitution it read as “Agriculture – Metered consumers – 40%”
: substituted vide GERC (Electricity Supply Code and Related Matters) (First Amendment)
Regulations, 2016, Notification No. 6 of 2016 came into effect from 23.11.2016. Prior to
substitution it read as “Direct theft- All categories – 100%”
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 30 of 46
30. As to what would constitute unauthorized use of electricity
is described in clause (b) of the Explanation to Section 126;
and as to what would constitute theft of electricity is
described in sub-section (1) of Section 135 of the 2003 Act.
When we compare the various sub-clauses of clause (b) of
the Explanation to Section 126 with those of sub-section (1)
of Section 135 of the 2003 Act, it becomes clear that theft
undoubtedly would include unauthorized use of electricity,
though every unauthorized use of electricity may not
constitute theft.
31. From a survey of the relevant statutory provisions what also
is clear is that there is no other provision in the 2003 Act for
making assessment than the one provided in Section 126,
which, however, is for making assessment qua unauthorized
use of electricity. Similarly, the 2003 Act and the Supply
Code do not specify any Assessing Officer for making
assessment in cases of theft of energy. Thus, there is no
Assessing Officer other than what is specified for making
assessment in cases of unauthorized use of electricity. As a
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 31 of 46
logical corollary thereof, in our view, the expression “the
assessed amount” as used in the third proviso to sub-
section 1(A) of Section 135 of the 2003 Act would have to be
understood as the amount assessed in accordance with the
procedure delineated in Section 126 of the 2003 Act. In
consequence, the amount required to be deposited under
the third proviso to sub-section (1A) of Section 135 for
restoration of supply would have to be assessed by the same
procedure as is to be used for making assessment under
Section 126 of the 2003 Act. Therefore, if sub-section (2) of
Section 126 requires the consumer to be served with an
order of provisional assessment, and sub-section (3) thereof
enables the consumer to file an objection to the provisional
assessment to ensure that the final order of assessment is
passed after affording a reasonable opportunity of hearing
to such person, the same procedure, which conforms to the
principles of natural justice, would have to be adopted for
assessing the amount required to be deposited under the
third proviso to sub-section (1A) of Section 135 for
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 32 of 46
restoration of supply until a separate procedure is
prescribed therefor by the Supply Code.
32. In West Bengal State Electricity Distribution Company
Ltd. (supra), a specific argument was raised that once a
complaint is filed alleging theft of energy under Section
135(1)(a) of the Act, no assessment is permissible under
Section 126(1) of the Act. After considering the relevant
provisions of the 2003 Act including sub-sections (5) and (6)
of Section 154, this Court, in paragraph 13, held:
“… All instances of unauthorized use of energy may not
amount to theft of electricity within the meaning of
Section 135 of the Act, but at the same time, the theft of
electricity which is covered by Section 135 of the Act, will
fall within the definition of unauthorized use of
electricity.”
Thereafter this Court proceeded to consider the provisions
of sub-section (1A) of Section 135 of the 2003 Act and the
third proviso thereof to observe:
“…Thus, it is clear that the authorities under the Act are
empowered to make a provisional and final assessment
by invoking power under Section 126(1) of the Act, even
in cases where electricity is unauthorizedly used by way
of theft.”
And went on to hold:
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 33 of 46
“…When a consumer deposits the assessed amount, the
licensee or the supplier has to restore the power supply.
The assessed amount referred to in the aforesaid proviso,
relates to assessment which is contemplated under
Section 126(1) of the Act only.”
After holding as above, this Court considered the distinction
between Section 126 and Section 135 of the 2003 Act and,
in that context, observed as under:
“There is apparent distinction between Section 126 and
Section 135 of the Act. Section 126 forms part of the
scheme which authorizes electricity supplier to ascertain
loss in terms of revenue caused to it by the consumer by
his act of unauthorized use of electricity whereas Section
135 deals with offence of theft, if he is found to have
indulged himself in the acts mentioned in clause (a) to (e)
of sub-section (1) of Section 135 of the Electricity Act.”
The Court thereafter considered the provisions of sub-
sections (5) and (6) of Section 154 of the 2003 Act,
conferring power on the Special Court to determine civil
liability, and, in that context, observed/held:
“The Special Court, in cases, where a criminal complaint
is lodged, is also empowered to determine civil liability
under Section 154 (5) of the Act. As per Section 154 (6) of
the Act, in case civil liability so determined by the Special
Court is less than the amount deposited by the consumer
or the person, the excess amount so deposited by the
consumer or the person, shall be refunded by the
licensee or the person concerned, as the case may be.
Merely because the Special Court is empowered to
determine civil liability under Section 154 (5) of the Act,
in cases where a complaint is lodged, it cannot be said
that there is no power conferred on authorities to make
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 34 of 46
provisional assessment / final assessment under Section
126 of the Act.”
After holding as above, the Court went on to summarize the
interplay between Section 126, Section 135 and Section
154(5) of the 2003 Act in the following terms:
“15. …The term “unauthorized use of energy” is of wide
connotation. There may be cases of unauthorized use of
energy, not amounting to theft, which are cases viz.
exceeding the sanctioned load or using the electricity in
the premises where its use is not authorized, etc. But at
the same time, when there is an allegation of
unauthorized use of energy by tampering the meter, such
cases of unauthorized use of energy include “theft” as
defined under Section 135 of the Act. The power
conferred on authorities for making assessment under
Section 126(1) of the Act and power to determine civil
liability under Section 154(5) of the Act, cannot be said to
be parallel to each other. In this regard, we are of the
view that the High Court has committed an error in
recording a finding, that both proceedings cannot operate
parallelly. In a given case where there is no theft of
energy, amounting to unauthorized use of energy, in
such cases no complaint of theft can be lodged as
contemplated under Section 135 of the Act. In such cases
for loss of energy, on account of unauthorized use of
energy not amounting to theft, it is always open for the
authorities to assess the loss of energy by resorting to
power under Section 126(1) of the Act. In cases where
allegation is of unauthorized use of energy amounting to
theft, in such cases, apart from assessment proceedings
under Section 126(1) of the Act, a complaint also can be
lodged alleging theft of energy as defined under Section
135(1) of the Act. In such cases, the Special Court is
empowered to determine civil liability under Section
154(5) of the Act. On such determination of civil liability
by the Special Court, the excess amount, if any,
deposited by the petitioner, is to be refunded to the
consumer. It is a settled principle that to prove the guilt
of the accused in a criminal proceeding, authorities have
to prove the case beyond reasonable doubt and the
element of mens rea is also to be established. On the
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 35 of 46
other hand, such a strict proof is not necessary for
assessing the liability under Section 126(1) of the Act.”
33. It is therefore clear that in cases of unauthorized use of
electricity amounting to theft, besides assessment
proceeding under Section 126 (1) of the 2003 Act, a
complaint can also be filed under Section 135 (1) of the
2003 Act and in such cases the Special Court is empowered
to determine the civil liability of the person concerned under
Section 154(5) of the 2003 Act. On such determination of
the civil liability by the Special Court, the excess amount, if
any, deposited by the person concerned, is to be refunded to
him. This implies that in cases of theft i.e. where a criminal
complaint is filed, the assessment made under Section 126
read with the provisions of the Supply Code is subject to the
final determination of the civil liability under Section 154(5)
of the 2003 Act.
34. The contention on behalf of the distribution licensee that in
matters concerning electricity theft there could be no
assessment in terms envisaged under Section 126 does not
appear correct when we consider the provisions of sub-
section (1A) of Section 135 of the 2003 Act in conjunction
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 36 of 46
with other provisions of the 2003 Act and the Supply Code.
Importantly, the third proviso to sub-section (1A) of Section
135 enables the consumer to seek restoration of the supply
of electricity on deposit/ payment of the assessed amount.
It is an emergency provision which enables a consumer who
has suffered disconnection, being accused of electricity
theft, to seek restoration of the supply of electricity, a
commodity essential for all aspects of life including
business. Therefore, for restoration of the supply of
electricity, if the person facing accusations of theft is
required to await final determination of civil liability under
sub-section (5) of Section 154, the very purpose of the third
proviso to sub-section (1A) of Section 135 would stand
frustrated. In our view, therefore, in the absence of any
provision other than the one under Section 126 of the 2003
Act to determine the ‘assessed amount’ (i.e. the expression
used in the third proviso to sub-section (1A) of Section 135),
and there being a singular formula (see Annexure IV
extracted above) in the Supply Code to make assessment,
adoption of the same procedure to determine the ‘assessed
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 37 of 46
amount’ for seeking restoration of the supply of electricity,
disconnected under sub-section (1-A) of Section 135 of the
2003 Act on accusations of theft, cannot be faulted.
35. Now what needs to be borne in mind is that sub-section (1)
of Section 126 provides for provisional assessment against
which an objection can be filed by the person aggrieved
under sub-section (3). Upon such objection, a reasonable
opportunity of hearing is to be afforded to the objector.
Whereafter, final assessment is made under sub-section (5)
of Section 126. Aforesaid assessment is subject to an appeal
under Section 127 and the order of the appellate authority,
by virtue of sub-section (4) of Section 127, is final. Taking a
clue from the aforesaid statutory scheme, particularly the
finality clause, it is submitted on behalf of the distribution
licensee that since final determination of the civil liability is
by the Special Court which addresses the accusations of
electricity theft, an appeal under Section 127 should not be
allowed in cases of theft because if the appellate order
attains finality, the provision enabling determination of civil
liability would be rendered otiose. In our view, the aforesaid
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 38 of 46
contention is not acceptable because in cases where there is
a complaint of theft, the finality attached to the order of the
appellate authority is limited to determining the amount
required for restoration of the supply of electricity
disconnected under sub-section (1A) of Section 135. It does
not absolve the offender of his civil liability which is
determined by the Special Court in exercise of its power
under sub-section (5) of Section 154. This is clear from a
bare reading of sub-section (6) of Section 154 of the 2003
Act which provides that in case the civil liability determined
by the Special Court under sub-section (5) is less than the
amount deposited by the consumer or the person, the
excess amount so deposited by the consumer or the person
concerned shall be refunded by the Board or licensee, etc. to
such consumer or person.
36. Thus, the legal position emerging from the aforesaid
discussion is that the benefit of the third proviso to sub-
section (1A) of Section 135 qua restoration of the supply of
electricity disconnected under sub-section (1A) of Section
135, in the absence of any specific provision in the Supply
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 39 of 46
Code notified under Section 181(2)(x) read with Section 50
of the 2003 Act, is available on deposit or payment of the
amount assessed in accordance with the provisions of
Section 126 of the 2003 Act read with the provisions of the
Supply Code, as are applicable to cases of unauthorized use
of electricity. However, since an appeal is considered as a
continuation of the original proceeding, the amount so
assessed under Section 126 is subject to the order in an
appeal under Section 127. In consequence, the assessed
amount determined in the appeal, if any, is final for the
limited purpose of seeking restoration of the supply of
electricity as contemplated under the third proviso to sub-
section (1A) of Section 135. However, in cases of theft where
a criminal complaint is filed, the determination under
Sections 126 and 127, though final for the purpose of
seeking restoration of the supply of electricity under the
third proviso to sub-section (1A) of Section 135, is subject to
the determination of the civil liability by the Special Court
under sub-section (5) of Section 154 of the 2003 Act.
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 40 of 46
37. In view of the discussion above, we summarize our
conclusions as under:
(i) In cases of electricity theft, for seeking restoration of
the supply of electricity disconnected under sub-
section (1A) of Section 135 of the 2003 Act, the
‘assessed amount’ required to be deposited or paid
under the third proviso to sub-section (1A) of Section
135 by the person concerned, in the absence of any
specific procedure prescribed under the Supply Code
notified under Section 181(2)(x) read with Section 50 of
the 2003 Act, is to be determined by adopting the same
procedure as is for assessing the electricity charges
payable by a person benefiting by the unauthorized
use of electricity.
(ii) The amount so assessed is subject to the
determination in an appeal, if any, filed under Section
127 of the 2003 Act. However, in cases of theft, the
determination by the appellate authority is final for the
limited purpose of seeking restoration of the supply of
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 41 of 46
electricity in terms of the third proviso to sub-section
(1A) of Section 135 of the 2003 Act. Importantly, where
a criminal complaint is filed, such determination is not
binding on the Special Court which is empowered to
determine the civil liability of the person concerned
under sub-section (5) of Section 154 of the 2003 Act.
(iii) If the amount assessed and deposited under the
third proviso to sub-section (1A) of Section 135
exceeds the civil liability determined by the Special
Court under sub-section (5) of Section 154, the excess
amount is to be refunded in terms envisaged under
sub-section (6) of Section 154.
38. At this stage, we shall deal with another contention made
on behalf of the licensee, which is, that the direction given
by the High Court for restoration of the electricity supply on
payment of half of the provisionally assessed amount is too
lenient a view that fails to accord due consideration to the
mandate of the third proviso to sub-section (1A) of Section
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 42 of 46
135. Moreover, such lenient view, if adopted, would fail to
deter those indulging in theft of electricity.
39. In that regard, we may observe that the powers of a
Constitutional Court, including the High Court, cannot be
totally circumscribed by statutory provisions, though self-
imposed restraints in dealing with matters which fall within
the four corners of a self-contained statutory code are
necessary. However, we must not be oblivious to the fact
that electricity is an essential commodity necessary for both
life and livelihood. Its deprivation may have serious
consequences. Therefore, in an appropriate case, the High
Court may be justified in exercising its constitutional
powers to protect a person from an arbitrary action of the
State and its instrumentalities including a distribution
licensee. However, in cases of theft, which necessarily
involves a criminal intent (i.e. mens rea ), adoption of a
liberal approach may not be appropriate. Rather, each case
should be addressed on its own facts and if the facts so
warrant, the High Court might be justified in even declining
the prayer for restoration of electricity supply till entire
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 43 of 46
amount, provisionally assessed, is deposited. In short, a
circumspect approach is required while dealing with
petitions seeking restoration of supply of electricity
disconnected on ground of theft.
40. At the same time, we cannot be oblivious to the time-
consuming procedure of making an assessment. An order of
provisional assessment under sub-section (1) of Section 126
is to be served upon the person concerned, under sub-
section (2) of Section 126 of the 2003 Act, to enable him to
file an objection. Final assessment takes shape only after
affording a reasonable opportunity of hearing to the person
concerned. Against the final assessment, the person
concerned has a right to file an appeal. This entire process
of assessment may, therefore, take considerable time. In
such circumstances, where the provisional assessment is
prima facie arbitrary, in our view, the High Court may, for
reasons to be recorded, order restoration of the supply by
directing the writ petitioner to pay such amount, out of the
demanded amount, which should not be less than 50%. We
have said 50% because under sub-section (2) of Section 127
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 44 of 46
of the 2003 Act an appeal is be entertained only upon
deposit of half of the assessed amount.
41. In the present case, the High Court was well within its
jurisdiction in directing for restoration of the supply of
electricity to the writ petitioner on deposit of 50 percent of
the amount provisionally assessed as due and payable.
Besides, the High Court justifiably permitted the writ
petitioner (i.e., the respondent herein) to contest the
provisional assessment by filing its objection and thereafter
deposit the balance amount finally assessed. These
stipulations sufficiently protect the interest of the appellant.
However, in our view, the High Court ought to have clarified
that such determination would be, in the first place, subject
to the appeal, if any, under Section 127 and, finally, subject
to the civil liability determined by the Special Court under
sub-section (5) of Section 154 of the 2003 Act, in case of
prosecution of the writ petitioner i.e. the respondent herein.
Except for the aforesaid clarification, we do not find any
reason to interfere with the impugned order of the High
Court in LPA No. 592 of 2024. Thus, subject to the aforesaid
Special Leave to Appeal Civil No(s). 17868/2024 & 8778/2025
Page 45 of 46
clarification, the appeal arising from the impugned order
passed in LPA No. 592 of 2024 is dismissed.
41. In so far as the appeal arising from the impugned order
passed in LPA No.474 of 2004 is concerned, we do not find a
good reason to interfere with the impugned order as it
merely remands the matter to the learned Single Judge who
shall decide the matter in accordance with the law. Thus,
this appeal too is dismissed.
All pending applications stand disposed of.
42.
..................................... J.
(Manoj Misra)
..................................... J.
(K.V. Viswanathan)
New Delhi;
October 26, 2026
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Page 46 of 46