Sopan Haribhau Athshere vs The Superintendent Engineer Msed Company And Ors
- Court
- Bombay High Court
CNR No : HCBM010072812026
WP-2573-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2573 OF 2026
Sopan Haribhau Athshere
Age : 53 years, Occ : Business,
Residing at Angangaon, Tq. Yeola,
Dist. Nashik. ..Petitioner
Versus
1. The Superintendent Engineer
Maharashtra State Electricity
Distribution Company Ltd.,
Malegaon Circle, Tq. Malegaon,
Dist. Nashik.
2. The Executive Engineer
Maharashtra State Electricity
Distribution Company Ltd.,
Rural Division, Manmad,
Tq. Nandgaon, Dist. Nashik.
3. Deputy Executive Engineer,
Maharashtra State Electricity
Distribution Company Ltd.,
Flying Squad, Kalyan Rural
Division, Kalyan, Tq. Kalyan,
Dist. Thane.
SAINATH
SANJAY
BODKHE
Digitally signed
by SAINATH
SANJAY BODKHE
Date: 2026.11.03
22:10:14 +0530
4. Deputy Executive Engineer,
Maharashtra State Electricity
Distribution Company Ltd.,
Yeola, Sub Division Yeola,
Tq. Yeola, Dist. Nashik.
5. The State of Maharashtra
Through G.P., High Court of Bombay.
…Respondents
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Mr. Sanjay P Shinde, for the Petitioner.
Ms. Nikita Jacob, i/b K P Law Associates LLP, for Respondent
Nos. 1 to 4 – MSEDCL.
Mr. Hamid Mulla, AGP for Respondent No.5 - State.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
CORAM : N. J. JAMADAR, J.
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RESERVED ON : 26 OCTOBER 2026
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PRONOUNCED ON : 03 NOVEMBER 2026
JUDGMENT:
1. Rule. Rule made returnable forthwith, and, with the
consent of the learned Counsel for the parties, heard finally.
2. By this petition under Article 227 of the Constitution of
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India, the petitioner takes exception to an order dated 29
January, 2026, passed by the learned District Judge-1, Yeola on
an application for interim relief to restore or reconnect the
electric supply, which has been disconnected in the wake of
allegations of the theft of electricity, detected in the inspection
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conducted on 18 December, 2024.
3. The background facts leading to this petition, can be
summarized as under :-
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3.1 The petitioner runs a stone crusher at Savargaon, Tq.
Yeola, Dist. Nashik. Two electric meters being Consumer Nos.
061548005271 and 061540803624 were installed to supply
electricity for the said stone crusher plant (“the subject plant”).
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3.2 On 18 December, 2024, a flying squad of the
Maharashtra State Electricity Distribution Company Limited,
the licencee (R-3) inspected the subject plant. The inspection
revealed that, a Kit-Kat fuse/cut-out provided before the meter
had been removed and the outgoing supply was diverted directly
to another meter’s incoming terminal, thereby bypassing the
metering equipment for connection bearing Consumer No.
061548005271. A spot inspection report was prepared.
3.3 A report was submitted to the Additional Executive
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Engineer, MSEDCL on 23 December, 2024 to assess the theft
of units of electricity under Section 135 of the Electricity Act,
2003. The Respondent No. 3 reported that, the period of theft
was of 22 months i.e. between February, 2023 and November,
2024 and the net assessed units were 1,23,855, after deducting
the billed units of 16,978. On the basis of said report, Assistant
Deputy Executive Engineer, MSEDCL, Yeola Sub-Division (R-4),
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issued a bill on 27 December, 2024 in the sum of Rs.
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22,93,410/- (Rupees Twenty Two Lakhs Ninety Three Thousand
Four Hundred and Ten only) towards the theft of energy.
Another bill in the sum of Rs. 7,50,000/- (Rupees Seven Lakhs
Fifty Thousand only) was raised towards the compounding
charges.
3.4 As the petitioner did not deposit the aforesaid electricity
charges and compounding charges, the electric supply to both
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the electric meters came to be disconnected. Eventually, on 07
February, 2025, the Respondent No. 3 lodged a report for an
offence punishable under Section 135 of the Electricity Act,
2003, against the petitioner.
3.5 After availing the remedies before the Civil Court and
Consumer Disputes Redressal Forum unsuccessfully, the
petitioner filed an application, being Civil Miscellaneous
Application No. 05/2025 before the Special Court, in which the
prosecution was lodged, for determination of the civil liability
under the provisions of Section 154(5) of the Electricity Act,
2003 and for ancillary reliefs. In the said application, the
petitioner filed an application (Exh. 24) seeking the appointment
of an Electrical Inspector to submit a report in regard to the
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correctness of the assessment of the electricity charges for the
alleged theft of electricity and compounding charges.
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3.6 By an order dated 08 April, 2025, the learned District
Judge was persuaded to allow the application, and appointed
the Electrical Inspector to visit subject plant and submit a
report about the assessment of the electricity charges. The
learned District Judge was of the view that, the appointment of
an Electrical Inspector would assist the Court in determining
the application for determination of the civil liability.
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3.7 On 01 July, 2025, the Electrical Inspector, Industrial
Energy Labour and Mines Department, Nashik submitted a
report to the effect that, the period of theft was to be reckoned
as 6 months as the actual period of theft was not clearly
established. By that token, the Electrical Inspector arrived at
the net assessed units (16,591) after deducting the billed units
(13,552) from the assessed consumption (30,413).
3.8 In view of the aforesaid report of the Electrical Inspector,
the petitioner filed an application for interim relief to restore the
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electric supply. By an order dated 11 August, 2025, the learned
District Judge rejected the application observing inter alia that,
the civil liability under Section 154(5) of the Electricity Act,
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2003 can be determined only after the parties adduce evidence.
The above-referred report submitted by the Electrical Inspector
cannot be construed as conclusive as the said assessment was
subject to the cross examination on behalf of the licencee and,
thus, at that stage, the contents of the assessment report
submitted by the said Electrical Inspector could not be relied
upon. Moreover, as the grant of interim relief of restoration of
electric supply would amount to granting final relief in the main
application, the learned District Judge declined to grant the
interim relief.
3.9 Being aggrieved, the petitioner preferred Writ Petition No.
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12666/2025. By an order dated 25 November, 2025, this Court
permitted the petitioner to withdraw the petition with liberty to
file a fresh application seeking determination of the amount to
be deposited by the petitioner in terms of the purported
assessment of the civil liability.
3.10 In the second round, the petitioner inter alia asserted that,
the net assessed units as assessed by the Electrical Inspector
were 16,591 and the petitioner was ready to deposit sum of Rs.
03,07,213/- (Rupees Three Lakhs Seven Thousand Two Hundred
and Thirteen only) computed at the rate of 18.51 per unit, which
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formed the basis of raising of electricity bill for the alleged theft
of electricity to the tune of Rs. 22,93,410/- (Rupees Twenty Two
Lakhs Ninety Three Thousand Four Hundred and Ten only).
3.11 The learned District Judge was again persuaded to reject
the application opining that, no question of grant of interim
relief arose till the civil liability was finally determined under
Section 154(5) of the Electricity Act, 2003. The parties were thus
directed to adduce evidence.
3.12 Being further aggrieved, the petitioner has again invoked
the writ jurisdiction of this Court.
4. An affidavit-in-reply has been filed on behalf of
Respondent Nos. 1 to 4. The substance of resistance put forth
by the Respondents No. 1 to 4 is that, an open and shut case of
theft of electricity has been made out. In such cases, in view of
the provisions contained in the third proviso to sub-section (1A)
of Section 135 of the Electricity Act, 2003, the electricity
connection cannot be restored till the entire assessed amount or
electricity charges are paid. It was also contended that, the
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Electrical Inspector who had submitted the report dated 01
July, 2025, was not the officer authorized to assess the theft of
electricity. Even otherwise, restricting the assessment period to
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six months only by the said Electrical Inspector, was in the
teeth of the actual detected period for which the electricity was
dishonestly extracted. The Respondents No. 1 to 4 also
contended that, the assessment under Sections 126 and 127 of
the Electricity Act, 2003 is materially distinct from an
assessment under Section 135 of the Electricity Act, 2003. The
Electrical Inspector had thus no authority to assess the
electricity charges in case of theft.
5. In the backdrop of the aforesaid facts and pleadings, I
have heard Mr. Sanjay Shinde, the learned Counsel for the
Petitioner, and Ms. Nikita Jacob, the learned Counsel for
Respondent Nos.1 to 4. The learned Counsel for the parties took
the Court through the pleadings and material on record.
6. Mr. Sanjay Shinde, the learned Counsel for the petitioner
submitted that, the learned District Judge was clearly in error
in observing that, the Special Court had no power to determine
the civil liability at an interim stage and pass an order for
restoration of electric supply. The power of the Special Court to
determine the civil liability under Section 154 of the Electricity
Act, 2003, is not trammelled by the provisions contained in
Sections 126 and 127 of the Electricity Act, 2003. To buttress
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this submissions, Mr. Shinde, placed a very strong reliance
upon a judgment of a learned Single Judge of this Court in the
case of Samadhan Arun Doifode Vs. Maharashtra State
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Electricity Distribution Company Ltd., & anr. , wherein this
Court enunciated that, there was a clear distinction between the
cases that would fall under Sections 126 and 135 of the
Electricity Act, 2003. Those two provisions operate in different
and distinct fields and and there was no commonality. Thus, it
was permissible for the Special Court to determine the civil
liability under Section 154 of the Electricity Act, 2003 and it
was not necessary for the Special Court to wait till the
conclusion of the trial.
7. Secondly, Mr. Shinde submitted that, the report of the
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Electrical Inspector dated 01 July, 2025 makes it explicitly
clear that, the precise period of alleged theft could not be
established and, therefore, the assessment period was required
to be confined to six months. The Electrical Inspector has, upon
proper analysis, arrived at the conclusion that, the net
assessment could be for 16,591 units. When the petitioner was
ready and willing to deposit the amount of the electricity
charges so assessed on the basis of the said report, the learned
1 2018 SCC OnLine Bom 2771
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District Judge could not have declined to restore the electric
supply upon payment of the amount so assessed, submitted Mr.
Shinde.
8. Mr. Shinde made a strenuous effort to drive home the
point that, the assessment made by the said Electrical Inspector
was in conformity with the Maharashtra Electricity Regulatory
Commission (Electric Supply Code and Standards of
Performance of Distribution Licensees including Power Quality)
Regulations, 2021, (“the Regulations, 2021”) and the circulars
issued by the Electricity Regulatory Commission.
9. In opposition to this, Ms. Nikita Jacob, the learned
Counsel for Respondent Nos. 1 to 4, submitted with tenacity
that, the electric supply cannot be restored until the entire bill
raised by the licencee for theft of electricity was deposited.
Banking upon the Regulations, 2021, Ms. Jacob submitted that,
the Regulations, 2021 mandate that, the electric supply can be
restored only upon payment of the assessed amount. To lend
support to this submission, Ms. Jacob, placed a strong reliance
on a Division Bench judgment of this Court in the case of
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Bhavani Polymers Industries Vs. Maharashtra State Electricity
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Distribution Company Ltd. .
10. Ms. Jacob submitted that, the material on record does
indicate that, it was a case of blatant theft of electricity by
tampering with the electricity cables and bypassing the electric
meters. In such cases, a direction for restoration of the
electricity supply on deposit of a small portion of the electricity
bill cannot be countenanced. It would cause grave prejudice to
the licencee and also jeopardize the public interest.
11. Ms. Jacob would urge that, the reliance on the report
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dated 01 July, 2025 submitted by the Electrical Inspector is
completely misplaced as the said officer had candidly stated
that, he had no authority to carry out the assessment of the
theft of electricity. In any event, the assessment period could not
have been truncated to 6 months in the face of material to
justify the assessment for the theft for a period of 22 months. In
these circumstances, Ms. Jacob would urge, the learned District
Judge was justified in rejecting the application. The Special
Court may thus be directed to expeditiously decide the aspect of
the determination of the civil liability, submitted Ms. Jacob.
2 WP/1591/2023 dt. 03/04/2023
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12. I have given careful consideration to the aforesaid rival
submissions.
13. To begin with, the uncontroverted facts. First, the jural
relationship between the petitioner and Respondent Nos. 1 to 4
as a consumer and licencee, is not in dispute. Nor the fact that
the flying squad led by Respondent No. 3 had conducted an
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inspection at the subject plant on 18 December, 2024, is in
contest. Evidently, on the basis of the spot inspection report, the
Respondent No. 4 had made a demand of electricity charges for
the theft of electricity as well as compounding charges by
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raising bills dated 27 December, 2024.
14. It is not in dispute that, on account of the failure on the
part of the petitioner to make the deposit, a report for an offence
punishable under Section 135 of the Electricity Act, 2003, has
been lodged. Indisputably, the petitioner had filed an application
for determination of the civil liability under Section 154(5) of the
Electricity Act, 2003 before the Special Court. It would be
appropriate to immediately notice that, though the Electrical
Inspector appointed by the Special Court as a Commissioner
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has submitted that a report on 21 June, 2025, determining the
net assessed units at 16,591 units and confining the period of
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theft of electricity to 6 months on the premise that, the material
on record did not establish the exact period of theft of electricity,
the Special Court was not inclined to place implicit reliance on
the said report as the correctness thereof was to be evaluated at
the final adjudication of the application for determination of the
civil liability. Restoration of the electric supply at an interim
stage upon deposit of the amount as assessed by the Electrical
Inspector was also held to be legally impermissible.
15. With the aforesaid clarity on facts, it may be apposite to
note few provisions of the Electricity Act, 2003, especially the
interplay between the provisions contained in Sections 126 and
127 of the Electricity Act, 2003, on the one part, and Sections
135 and 154 of the Electricity Act, 2003, on the other part. The
expression “unathorized use of electricity” is defined under the
explanation to Section 126 of the Electricity Act, 2003. The
expression “theft of electricity” is defined under Section 135 of
the Electricity Act, 2003.
16. To correctly appreciate the interplay between these
provisions, it may be apposite to extract the provisions
contained in Sections 126 and 127, and Sections 135 and 154 of
the Electricity Act, 2003. They ready as under :-
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“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
unauthorised 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 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 within thirty 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:
[ x x x ]
[(5) If the assessing officer reaches to the conclusion that
unauthorised use of electricity has taken place, the
assessment shall be made for the entire period during
which such unauthorised use of electricity has taken
place and if, however, the period during which such
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unauthorised use of electricity has taken place cannot be
ascertained, such period shall be limited to a period of
twelve months immediately preceding the date of
inspection.]
(6) The assessment under this section shall be made at
a rate equal to [twice] the tariff rates 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) “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
licensee; 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.]
127. Appeal to appellate authority
(1) Any person aggrieved by the final order made under
section 126 may, within thirty 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
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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 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.
(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 thirty days from the date of
order of assessment, an amount of interest at the rate of
sixteen per cent. per annum compounded every six
months.
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
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(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 proper 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 authorised,
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:
PROVIDED that in a case where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use –
(i) does not exceed 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the event
of second or subsequent conviction the fine imposed shall
not be less than six times the financial gain on account of
such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on
account of such theft of electricity and in the event of
second or subsequent conviction, the sentence shall be
imprisonment for a term not less than six months, but
which may extend to five years and with fine not less than
six times the financial gain on account of such theft of
electricity:
PROVIDED FURTHER that in the event of second and
subsequent conviction of a person where the load
abstracted, consumed, or used or attempted abstraction or
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attempted consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred from getting
any supply of electricity for a period which shall not be less
than three months but may extend to two years and shall
also be debarred from getting supply of electricity for that
period from any other source or generating station:
PROVIDED ALSO that if it is proved that any artificial
means or means not authorised by the Board or licensee
or supplier, as the case may be, exist for the abstraction,
consumption or use of electricity by the consumer, it shall
be presumed, until the contrary is proved, that any
abstraction, consumption or use of electricity has been
dishonestly caused by such consumer.
(1A) 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 hours from
the time of such disconnection:
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
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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.]
(2) [Any officer of the licensee or supplier as the case may
be, authorised in this behalf by the State Government
may-
(a) enter, inspect, break open and search any place or
premises in which he has reason to believe that electricity
has been or is being, used unauthorisedly:
(b) search, seize and remove all such devices, instruments,
wires and any other facilitator or article which has been, or
is being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents
which in his opinion shall be useful for or relevant to, any
proceedings in respect of the offence under sub-section (1)
and allow the person from whose custody such books of
account or documents are seized to make copies thereof or
take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on
his behalf shall remain present during the search and a
list of all things seized in the course of such search shall
be prepared and delivered to such occupant or person who
shall sign the list:
PROVIDED that no inspection, search and seizure of any
domestic places or domestic premises shall be carried out
between sunset and sunrise except in the presence of an
adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973
(2 of 1974), relating to search and seizure shall apply, as
far as may be, to searches and seizure under this Act.
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154. Procedure and power of Special Court
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every offence
punishable under sections 135 to 140 and section 150
shall be triable only by the Special Court within whose
jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any
inquiry or trial that an offence punishable under [sections
135 to 140 and section 150] in respect of any offence that
the case is one which is triable by a Special Court
constituted under this Act for the area in which such case
has arisen, it shall transfer such case to such Special
Court, and thereupon such case shall be tried and
disposed of by such Special Court in accordance with the
provisions of this Act:
PROVIDED that it shall be lawful for such Special Court to
act on the evidence, if any, recorded by any court in the
case of presence of the accused before the transfer of the
case to any Special Court:
PROVIDED FURTHER that if such Special Court is of
opinion that further examination, cross-examination and
re-examination of any of the witnesses whose evidence has
already been recorded, is required in the interest of justice,
it may re-summon any such witness and after such further
examination, cross-examination or re-examination, if any,
as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything
contained in sub-section (1) of section 260 or section 262
of the Code of Criminal Procedure, 1973 (2 of 1974), try the
offence referred to in sections 135 to 140 and section 150
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in a summary way in accordance with the procedure
prescribed in the said Code and the provisions of sections
263 to 265 of the said Code shall, so far as may be, apply
to such trial:
PROVIDED that where in the course of a summary trial
under this subsection, it appears to the Special Court that
the nature of the case is such that it is undesirable to try
such case in summary way, the Special Court shall recall
any witness who may have been examined and proceed to
re-hear the case in the manner provided by the provisions
of the said Code for the trial of such offence:
PROVIDED FURTHER that in the case of any conviction in
a summary trial under this section, it shall be lawful for a
Special Court to pass a sentence of imprisonment for a
term not exceeding five years.
(4) A Special Court may, with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly concerned in or privy to, any offence tender
pardon to such person on condition of his making a full
and true disclosure of the circumstances within his
knowledge relating to the offence and to every other person
concerned whether as principal or abettor in the
commission thereof, and any pardon so tendered shall, for
the purposes of section 308 of the Code of Criminal
Procedure, 1973 (2 of 1974), be deemed to have been
tendered under section 307 thereof.
(5) 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
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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.
(6) 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 : 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 section 150.]
17. On a plain textual reading it emerges that, Section 126 of
the Electricity Act, 2003 deals with the cases of unauthorized
use of electricity. The assessment proceedings thereunder have
their genesis in the inspection of the subject premises by the
Assessing Officer and the satisfaction and findings to be
recorded by the Assessing Officer that, the consumer is
indulging in an “unauthorized use of electricity”. In a sense,
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Sections 126 and 127 of the Electricity Act, 2003 constitute a
complete code. Under the scheme of Sections 126 and 127 of the
Electricity Act, 2003, the Assessing Officer has to provisionally
assess the electricity charges payable by the consumer on
account of purported unauthorized use of electricity. Section
126(3) of the Electricity Act, 2003, envisages a notice to the
consumer providing him an opportunity to file objections to the
provisional assessment made by the Assessing Officer. After
such opportunity of hearing, the Assessing Officer can pass a
final assessment order. A remedy of appeal against the final
assessment order is provided under Section 127 of the
Electricity Act, 2003.
18. In contrast, Section 135 of the Electricity Act, 2003, which
is subsumed under Part XIV relating to offences and penalties,
proscribes and punishes theft of electricity. The expression
“theft of electricity” is defined in wide terms. It opens with the
words “Whoever, dishonestly” which emphasize the element of
mens rea . A consumer indulging in any or all of the acts
specified under clauses (a) to (e) of sub-section (1) of Section 135
of the Electricity Act, 2003 so as to abstract or consume or use
electricity shall be deemed to have committed theft of electricity
and thus liable for punishment.
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19. Sub-section (1A) of Section 135 of the Electricity Act,
2003, empowers the licencee or supplier upon detection of such
theft of electricity through an officer of the specified rank to
immediately disconnect the supply of electricity. For the
purposes of case at hand, the provisions contained in the third
proviso to Sub-section (1A) of Section 135 of the Electricity Act,
2003, assumes significance. Under the said provision, the
licencee or supplier on deposit or payment of the assessed
amount or electricity charges in accordance with provisions of
that Act shall, without prejudice to the obligation to lodge the
compliant as referred to in the second proviso to that sub-
section, restore the supply of electricity within 48 hours of such
deposit or payment.
20. Section 154(5) of the Electricity Act, 2003, empowers the
Special Court constituted under Section 153 of the Electricity
Act, 2003 to 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
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determined shall be recovered as if it were a decree of Civil
Court. Sub-section (6) of Section 154 of the Electricity Act,
2003, makes consequential provision for adjustment and refund
of the amount deposited by the consumer in case the amount so
deposited exceeds the civil liability determined by the Special
Court.
21. The thrust of the submissions on behalf of Respondent
Nos. 1 to 4 was that, the provisions contained in Sections 126
and 127 of the Electricity Act, 2003 and Section 135 and 154 of
the Electricity Act, 2003 operate in different spheres. The
principles that govern the assessment of the liability under
Section 126 of the Electricity Act, 2003 cannot be imported to a
case of theft of electricity. Therefore, the restoration of electricity
in a case where the consumer is accused of having committed
theft of electricity can only be upon the deposit of the entire
assessed amount or the electricity charges under the third
proviso to Section 135(1A) of the Electricity Act, 2003. In the
event the civil liability is finally determined by the Special Court
under Section 154(5) of the Electricity Act, 2003, and the said
liability is less than the electricity charges and compounding
charges raised by the Respondent No. 4, the petitioner would be
entitled to the refund of excess amount alongwith interest.
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22. Though the aforesaid submissions premised on the
distinction between Sections 126 and 135 of the Electricity Act,
2003 appear apparently consistent with the textual scheme of
the Electricity Act, 2003, yet, the two sets of provisions, in the
considered view of this Court, cannot be construed in watertight
compartments. As would emerge from the purposive
interpretation of these provisions and the decisions of the
Supreme Court which illuminate the path, it appears that, at
the stage of assessment of the electricity charges an element of
convergence emerges. A prime reason for this convergence is
that, all unauthorized use of electricity may not constitute theft
of electricity but all the cases of theft of electricity may have the
trappings of the unauthorized use of electricity.
23. The distinction between the provisions contained in
Sections 126 and 135 of the Electricity Act, 2003 was postulated
by a three-Judge Bench judgment of the Supreme Court in the
case of Executive Engineer, Southern Electricity Supply
Company of Orissa Ltd. (SOUTHCO) & anr. Vs. Sri Seetaram
3
Rice Mill . The Supreme Court observed, inter alia , as under :-
“1(b) Distinction between Sections 126 and 135 of the
2003 Act
3 (2012) 2 SCC 108
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24. Upon their plain reading, the mark differences
in the contents of Sections 126 and 135 of the 2003
Act are obvious. They are distinct and different
provisions which operate in different fields and have
no common premise in law. We have already noticed
that Sections 126 and 127 of the 2003 Act read
together constitute a complete code in themselves
covering all relevant considerations for passing of an
order of assessment in cases which do not fall under
Section 135 of the 2003 Act.
25. Section 135 of the 2003 Act falls under Part XIV
relating to “offences and penalties” and title of the
Section is “theft of electricity”. The Section opens with
the words “whoever, dishonestly” does any or all of
the acts specified under clauses (a) to (e) of Sub-
section (1) of Section 135 of the 2003 Act so as to
abstract or consume or use electricity shall be
punishable for imprisonment for a term which may
extend to three years or with fine or with both.
Besides imposition of punishment as specified under
these provisions or the proviso thereto, Sub-section
(1A) of Section 135 of the 2003 Act provides that
without prejudice to the provisions of the 2003 Act,
the licensee or supplier, as the case may be, through
officer of rank authorized in this behalf by the
appropriate commission, may immediately disconnect
the supply of electricity and even take other measures
enumerated under Sub-sections (2) to (4) of the said
Section. The fine which may be imposed under
Section 135 of the 2003 Act is directly proportional to
the number of convictions and is also dependent on
the extent of load abstracted.
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26. In contradistinction to these provisions,
Section 126 of the 2003 Act would be applicable to
the cases where there is no theft of electricity but the
electricity is being consumed in violation of the terms
and conditions of supply leading to malpractices
which may squarely fall within the expression
“unauthorized use of electricity”. This
assessment/proceedings would commence with the
inspection of the premises by an assessing officer and
recording of a finding that such consumer is
indulging in an “authorized use of electricity”. Then
the assessing officer shall provisionally assess, to the
best of his judgment, the electricity charges payable
by such consumer, as well as pass a provisional
assessment order in terms of Section 126(2) of the
2003 Act.
……
29. Thus, it would be clear that the expression
“unauthorized use of electricity” under Section 126 of
the 2003 Act deals with cases of unauthorized use,
even in absence of intention. These cases would
certainly be different from cases where there is
dishonest abstraction of electricity by any of the
methods enlisted under Section 135 of the 2003 Act.
A clear example would be, where a consumer has
used excessive load as against the installed load
simpliciter and there is violation of the terms and
conditions of supply, then, the case would fall under
Section 126 of the 2003 Act. On the other hand,
where a consumer, by any of the means and methods
as specified under Sections 135(a) to 135(e) of the
2003 Act, has abstracted energy with dishonest
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intention and without authorization, like providing for
a direct connection bypassing the installed meter, the
case would fall under Section 135 of the Act.
30. Therefore, there is a clear distinction between
the cases that would fall under Section 126 of the
2003 Act on the one hand and Section 135 of the
2003 Act on the other. There is no commonality
between them in law. They operate in different and
distinct fields. The assessing officer has been vested
with the powers to pass provisional and final order of
assessment in cases of unauthorized use of electricity
and cases of consumption of electricity beyond
contracted load will squarely fall under such power.
The legislative intention is to cover the cases of
malpractices and unauthorized use of electricity and
then theft which is governed by the provisions of
Section 135 of the 2003 Act.”
(emphasis supplied)
24. In the case of West Bengal State Electricity Distribution
4
Company Ltd. & ors., Vs. Orion Metal Pvt. Ltd., & anr. , the
High Court had drawn a distinction between the cases where
the restoration of the supply was sought by consumer, and in
cases where the consumer did not seek such restoration of
electric supply after disconnection and held that, only in cases
where consumer sought restoration of supply after
disconnection, the authorities can resort to make assessment
4 (2020) 18 SCC 588
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under Section 126(1) of the Electricity Act, 2003, otherwise the
civil liability can be determined by the Special Court only by
following the procedure under sub-section (5) of Section 154 of
the Electricity Act, 2003.
25. Disagreeing with the aforesaid distinction made by the
High Court and the view of the High Court that both
proceedings cannot operate parallelly, the Supreme Court again
analyzed the import of the provisions contained in Sections 126
and 127 of the Electricity Act, 2003; on the one part, and
Sections 135 and 154 of the Electricity Act, 2003; on the other
part, the distinction therein and the areas where the
assessment provisions conflate. In the process, the Supreme
Court emphasized that, all instances of unauthorized use of
energy may not amount to theft of electricity within the meaning
of Section 135 of the Electricity Act, 2003, but at the same time
the theft of electricity which is covered by Section 135 of the
Electricity Act, 2003 will fall within the definition of
unauthorized use of electricity.
26. The Supreme Court further clarified that, the expression
“assessed amount” referred to in the third proviso to Section
135 (1A) of the Electricity Act, 2003, upon the payment of which
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the licencee or supplier is enjoined to restore the supply of
electricity within 48 hours, relates to the assessment which is
contemplated under Section 126(1) of the Electricity Act, 2003,
only. The observations of the Supreme Court in Paragraph Nos.
12, 13 and 15 are instructive and, hence, extracted below :-
“12. A perusal of the aforesaid provisions and on giving a
conjoint reading of the same, it appears to us that after an
inspection of any place or any premises of any consumer,
when Assessing Officer comes to a conclusion that the
consumer is indulging in unauthorized use of electricity,
the provisional assessment to the best of his judgment is to
be made in accordance with Section 126(1) of the Act and
such provisional assessment shall be served upon the
person in occupation of the premises. After giving an
opportunity to file objections to the provisional assessment,
the Assessing Officer is empowered to pass a final order of
the assessment assessing the loss of energy, on account of
unauthorized use of energy. The unauthorized use of
electricity is defined under Section 126 (6)(b) of the Act. It
is clear from the aforesaid definition that unauthorized use
of electricity means, the usage of electricity by any artificial
means or by a means not authorized by the concerned
person or authority or licensee; or through a tampered
meter; or for the purpose other than for which the usage of
electricity was authorized; or for the premises or areas
other than those for which the supply of electricity was
authorized.
13. It is clear from the reading of Section 126 (6)(b)(iii) of
the Act that instances of use of energy through a tampered
meter is included in the definition of unauthorized use of
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electricity. If that is so, there is no reason, for excluding
the power of the authorities for making assessment under
Section 126 (1) the Act to assess the loss of energy, where
electricity is used through a tampered meter. 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. As per Section
135(1A) of the Act, without prejudice to the other
provisions of the Act, the licensee or supplier, as the case
may be, upon detection of theft of electricity, is empowered
to disconnect the power supply immediately. Further, as
per the third proviso to Section 135(1A) of the Act, the
licensee or supplier, as the case may be, on deposit or
payment of assessed amount or electricity charges, without
prejudice to the obligation to lodge a complaint, can restore
the power supply electricity within forty- eight(48) hours of
deposit /payment of such amount. 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
unauthorisedly used by way of theft. 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. 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
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Section 135 deals with offence of theft if he is found to
have indulged himself in the acts mentioned in clauses (a)
to (e) of sub-section (1) of Section 135 of Electricity Act.
Further, it is also clear from Section 154 of the Act, which
prescribes procedure and power of Special Court, that the
Special Court is empowered to convict the consumer and
impose a sentence of imprisonment. 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 concerned
person, 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 provisional assessment/final
assessment under Section 126 of the Act.
…...
15 . We also do not find any valid reason for making a
distinction as made by the High Court in applying Section
126 of the Act. From the scheme of the Act, it appears that
after inspection team notices unauthorized use of energy
by tampering the meter, the authorities can disconnect the
power supply immediately and make immediate
assessment for loss of energy, by invoking power under
Section 126(1) of the Act. The term “unauthorized use of
energy” is of wide connotation. There may be cases of
unauthorized use of energy, not amounting to theft, which
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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 assessing
the 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 other hand,
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such a strict proof is not necessary for assessing the
liability under Section 126(1) of the Act. ”
(emphasis supplied)
27. In the case of Himadri Steel Pvt. Ltd. Vs. Jharkhand Urja
5
Vikas Nigam Ltd. & ors. , the Supreme Court again enunciated
in clear and explicit terms that, Section 135 of the Electricity
Act, 2003, does not have a separate procedure of assessment,
like the one under Section 126 of the Electricity Act, 2003 in
case of “unauthorized use of electricity”. Even then, the
procedure under Section 127 of the Electricity Act, 2003 is
applicable to cases of theft of electricity for the reason that all
acts of unauthorized use of electricity are not theft but all cases
of “theft of electricity” fall under the ambit of unauthorized use
of electricity. The observations in Paragraph Nos. 19 and 21 are
material and hence, extracted below :-
“19. T he concept of “provisional order of assessment” and
“final order” find their place under Section 127 of the Act
which governs the cases falling squarely under Section
126 of the Act. Section 135 does not have a separate
procedure. Even then, the procedure applicable under
Section 127 is applicable on cases falling under Section
126 simply for the reason that all acts of unauthorised
use of electricity are not theft, but all cases of “theft of
electricity” fall under the unauthorised use of electricity.
5 2026 SCC OnLine SC 1563
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Hence, if we were to make a Venn Diagram, it will look
somewhat like this:
….
21. It stands established that though not explicitly
mentioned, Section 127 applies as much to Section 135 as
it does to Section 126. It is clear as daylight that the
provision for statutory appeal under Section 127 of the
Electricity Act is only with regards to a final order of
assessment and not a provisional order. Since the Act
does not provide for a statutory appeal against a
Provisional Assessment Order, the Writ Petition against
the same is maintainable.”
(emphasis supplied)
28. The issue of interplay between Sections 126 and 135 of the
Electricity Act, 2003 again came up for consideration before the
Supreme Court in the case of Dakshin Gujarat Vij Company
6
Ltd. & anr., Vs. Vaibhav Metal Crusher . In a very recent
th
judgment pronounced on 26 October, 2026, the Supreme
Court, upon an analysis of the provisions of Electricity Act,
2003 and the Supply Code, 2015, applicable to the State of
Gujarat, postulated that there is no other provision in the
Electricity Act, 2003, for making assessment in cases of theft of
electricity than the one provided in Section 127 of the Electricity
Act, 2003 which is for making assessment qua unauthorized
use of electricity. The expression “the assessed amount” as used
6 SLP (C) No. 17868/2024+
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in the third proviso to Sub-section (1A) of Section 135 of the
Electricity Act, 2003 would have to be understood as the
amount assessed in accordance with the procedure delineated
in Section 126 of the Electricity Act, 2003. The observations in
Paragraph Nos. 31 and 33 read as under :-
“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 logical corollary thereof, in our view, the
expression “the assessed amount” as used in the third
proviso to sub-section (1A) 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,
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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 restoration of supply until a separate
procedure is prescribed therefor by the Supply Code.
……….
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.”
(emphasis supplied)
29. The Supreme Court expressly repelled the submission like
the one canvassed before this Court on behalf of the
Respondent Nos. 1 to 4, that in matters concerning electricity
theft there could be no assessment as envisaged under Section
126 of the Electricity Act, 2003, in the following words :-
“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
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does not appear correct when we consider the provisions
of sub- section (1A) of Section 135 the 2003 Act in
conjunction 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 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
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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 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
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of electricity disconnected under sub-section (1A) of
Section 135, in the absence of any specific provision in
the Supply 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.”
(emphasis supplied)
30. In the case of Dakshin Gujarat Vij Company (supra) , the
Supreme Court also considered the justifiability of an order
passed by the High Court for restoration of electric supply on
payment of half of the provisionally assessed amount. After
considering the competing interest, in the face of the allegations
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of theft of electricity, the Supreme Court enunciated that, where
the provisional assessment is prima facie arbitrary, 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%
because under sub-section (2) of Section 127 of the Electricity
Act, 2003, an appeal is to be entertained only upon deposit of
half of the assessed amount. The observations in Paragraph
nos. 38 to 40 read as under :-
“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 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
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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 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 of the 2003 Act an appeal is be
entertained only upon deposit of half of the assessed
amount.”
(emphasis supplied)
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31. In the light of the aforesaid enunciation of the legal
position, it is deducible that even where the allegation is of theft
of electricity, the “assessed amount” upon the deposit of which
the licencee is enjoined to restore the electric supply under the
third proviso to Section 135(1A) of the Electricity Act, 2003,
means the amount that has been assessed in accordance with
the provisions under Sections 126 and 127 of the Electricity
Act, 2003. There is no other mechanism to determine the
assessed amount than the one envisaged by Section 126 of the
Electricity Act, 2003. As noted above, the assessment on
account of unauthorized use of electricity subsumes in its fold
the theft of electricity as in all cases of theft of electricity, there
is unauthorized use of electricity. In this sense, at the stage of
assessment of the amount of electricity charges on account of
theft of electricity, the provisions contained in Sections 126 and
135 of the Electricity Act, 2003, converge. Therefore, the
question as to whether the assessed amount in cases of theft of
electricity is determined in accordance with the procedure
prescribed under Section 126 of the Electricity Act, 2003,
becomes relevant.
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32. It is imperative to note that, the provisions contained in
the Regulations, 2021, do not prescribe a different mechanism
for assessment of the amount in the cases of theft of electricity.
Clause 10 of the Regulations, 2021 reads as under :-
“10. Theft and Unauthorised use of Electricity
10.1 Theft of Electricity
10.1.1 The computation of fine to be paid by the
Consumer on conviction shall be as specified in Section
135 of the Act. This shall be computed for the entire
period for which the dishonest abstraction, consumption
or use of electricity under that Section can be clearly
established by the officer authorised by the State
Government in this regard :
Provided that the Distribution Licensee shall specify and
upload the methodology for computation of the fine on its
website which shall not be inconsistent with the
provisions of the Act/Regulations.
10.1.2 Without prejudice to the provisions of the Act, the
Distribution Licensee or supplier, as the case may be,
may, upon detection of such an instance of theft of
electricity, immediately disconnect the supply of
electricity to the premises in contention. This
disconnection may involve removal of meter, electric line,
electric plant and other apparatus in case of theft :
Provided that only such officer of the licensee or supplier,
as authorized for the purpose by the Commission or any
other officer of the licensee or supplier, as the case may
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be, of the rank higher than the rank so authorized shall
disconnect the supply line of electricity :
Provided further that pending adjudication by the
appropriate court, the Distribution Licensee or supplier
shall restore the supply line of electricity within Forty
Eight (48) hours of payment of assessed amount without
prejudice to the obligation to lodge the complaint. The
assessment shall be made at a rate equal to twice the
tariff applicable to the category of services and for the
actual period of theft. Where the period for theft cannot
be ascertained, it shall be presumed to be Twelve (12)
months prior to the date of detection of such dishonest
abstraction, consumption or use of electricity.
10.1.3 Where a case of theft of electricity is detected for
metered connection, the units billed by the Distribution
Licensee to the Consumer during the assessment period,
shall be duly credited to the Consumer.”
33. In the backdrop of the aforesaid legal position, reverting to
the facts of the case at hand, it appears rather incontrovertible
that the Respondent No. 4 has raised the electricity bill dated
th
27 December, 2024, on the allegations of theft of electricity.
However, there is no material to indicate that, the procedure
envisaged by Sections 126 and 127 of the Electricity Act, 2003,
was thereafter followed. It does not appear that, the petitioner
was given opportunity to raise objection to the said assessment
of the electricity charges, in the manner envisaged by Section
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126 of the Electricity Act, 2003. Nor is it the case of the
Respondents Nos. 1 to 4 that a final assessment order after
providing an opportunity of hearing to the petitioner has been
passed. What the Respondent Nos. 1 to 4 insist is that, the
petitioner must pay the electricity charges and compounding
charges as raised by the Respondent No. 4.
34. At this juncture, the exercise carried out by the Special
Court by appointing the Electrical Inspector as a Commissioner
purportedly in exercise of the power under Order XXXIX Rule 7
of the Code of Civil Procedure, 1908, deserves consideration.
The Electrical Inspector has submitted a report to the effect
that, the precise period of theft of electricity could not be
established. Therefore, the theft of electricity should be
reckoned for a period of six months preceding the date of
inspection. So construing, the Electrical Inspector has arrived
at the net assessment units of 16591.
35. The submissions on behalf of Respondent Nos. 1 to 4 that,
the Electrical Inspector who has submitted the report is not an
Assessing Officer under Section 126 of the Electricity Act,
2003, cannot be said to be unfounded. However, at an interim
stage where the petitioner was seeking restoration of electric
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supply upon deposit of the amount as assessed by the Electrical
Inspector, especially in the absence of the final assessment as
envisaged by Section 126 of the Electricity Act, 2003, the report
of the Electrical Inspector appointed as a Court Commissioner
cannot be said to be bereft of any value.
36. Another factor which assumes critical salience is the
demand of electricity charges by the Respondent No. 3 for an
assessment period of 22 months. As noted above, under sub-
section (5) of Section 154 of the Electricity Act, 2003, the
Special Court shall determine the civil liability at the specified
rate for a period of 12 months preceding the date of detection of
theft of energy or the exact period of theft if determined
whichever is less. Under Regulations, 2021 under clause 10.1.2,
the provisional assessment shall be made at a rate equal to
twice the tariff applicable to the category of services and for the
actual period of theft and where the period for theft cannot be
ascertained it shall be presumed to be 12 months prior to the
date of detection of such dishonest, abstraction, consumption or
use of electricity. In the face of the report of the Electrical
inspector that, the exact period of theft of electricity could not
be established, prima facie , the assessment for a term of 22
months may suffer from the vice of arbitrariness, apart from
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being contrary to the text of Section 154(5) of the Electricity Act,
2003, albeit for the purpose of final adjudication of civil liability.
37. The case at hand, in the considered view of this Court,
falls in the category of cases in which this Court in exercise of
the writ jurisdiction may direct the restoration of the electric
supply to the subject plant as it has been disconnected for
almost two years and the final determination of the civil liability
may take considerable time.
38. For the foregoing reasons, this Court is inclined to direct
the Respondent Nos. 1 to 4 to restore the electric supply upon
payment of 50% of the electricity charges demanded by the
th
Respondent No. 4 under the bill raised on 27 December, 2024
i.e. Rs. 11,46,705/- (Rupees Eleven Lakhs Forty Six Thousand
Seven Hundred and Five) and the reconnection charges, if any.
39. The petition, therefore, deserves to be partly allowed.
Hence, the following order :-
: : O R D E R : :
I) The Writ Petition stands partly allowed.
th
II) The impugned order dated 29 January, 2026,
stands quashed and set aside.
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III) The Respondent Nos. 1 to 4 are directed to
restore the electric supply to two electric meters
bearing Consumer Nos. 061548005271 and
061540803624 within a period of three days of
deposit of 50% of bill amount i.e. Rs. 11,46,705/-
(Rupees Eleven Lakhs Forty Six Thousand Seven
Hundred and Five) and the reconnection charges, if
any, by the petitioner under specific intimation to
Respondent No. 4.
IV) By way of abundant caution, it is clarified that
the Special Court shall not be influenced by any of
the aforesaid observations while finally determining
the civil liability under Section 154(5) of the
Electricity Act, 2003.
V) Rule made absolute to the aforesaid extent.
No costs.
[N. J. JAMADAR, J.]
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