P.P. Bhatt, J.Heard learned counsel for the parties. This Letters Patent Appeal is against the judgment dated 11th February, 2013 disposing the writ petition being W.P. (C) No. 727 of 2013.

2. The appellant was served with a communication dated 24th January, 2013 (Annexure 6), purported to be a provisional assessment bill u/s 126 of the Indian Electricity Act, 2003 (hereinafter referred to as "the Act") for which a first information report was lodged on 23rd January, 2013 against the appellant for the alleged pilferage of electrical energy. Along with this communication dated 24th January, 2013 signed by the Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur, one calculation sheet prepared by the Electrical Executive Engineer (C & R), Electric Supply Circle, Jamshedpur was attached. In this calculation sheet also, there is mention of provisional assessment bill u/s 126 of the Act. The appellant, aggrieved against this communication and bill, preferred the writ petition and prayed that the said provisional order of assessment dated 24th January, 2013 is in gross contravention of Clause 15.8(xii) of the Electricity Supply Code Amendment Regulations, 2010 and, therefore, deserves to be set aside.

3. The appellant took various grounds to challenge the said provisional assessment order dated 24.1.2013 but the learned single Judge disposed of the writ petition without deciding the issues raised by the petitioner with direction to the respondent to restore the electric connection of the appellants unit with a new Meter within 48 hours upon deposit of Rs. 20 Lacs against the total liability of the appellant as raised in the provisional assessment bill of Rs. 48,39,666.00. So far as the contentions of the appellant which were raised, the learned single Judge observed that rest of the contentions raised by the appellant are relating to the issues, which can only be determined either after conclusion of the investigation carried out pursuant to the first information report lodged on the basis of inspection done by the respondents or on the basis of final assessment to be made by the competent authority u/s 126 of the Act. Aggrieved against the said judgment dated 11.2.2013 referred above, the appellant has preferred this Letters Patent Appeal.

4. Learned Senior Advocate for the appellant Shri M.S. Mittal and counsel for the JSEB argued on merits of the issues raised by the appellant in detail.

5. It is clear from the material placed on record before this Court, which are not in dispute that the appellant/petitioner himself wrote a letter to the concerned authority on 19.1.2013 informing that some miscreants have broken the seal of Meter reading room and also disconnected the earthing wire of the Transformer and, therefore, requested to refix the seal. In response to this letter of the appellant, one inspection team came from the Jharkhand State electricity Board on 23.1.2013 and prepared a Inspection report, wherein it has been alleged that during checking, the Metering unit L.V. Box one of the left side hole, which was sealed by M. Seal at the time of installation, and charging the metering unit, was Pound interfered and M. Seal found wet. L.V. Box opened and it was found that wet M. Seal easily removed and hole appeared from which secondary terminals may be accessed from outside without disturbing any seals of the L.V. Box, whereas the right side Metering Cable, entry M. Seal which was done on 8.12.2012 was found in healthy condition. During the inspection, no any foreign materials were found inside the secondary terminal box. Then after recording the requisite details, it was observed that the supply wing was instructed to lodge first information report as per provisions of law obviously for electricity theft. The relevant materials i.e., Metering Unit etc. were seized and memo was prepared. The appellant placed on record a copy of the inspection report. In pursuance of that inspection report, first information report was lodged on 23.1.2013 before the concerned police station by the Assistant Engineer of the Board, a copy of the first information report was also placed on record as Annexure-4.

6. According to learned counsel for the appellant Shri M.S. Mittal, the Electric Supply Code Amendment Regulation, 2010 (hereinafter referred to as "Regulations, 2010"), has prescribed complete procedure for such type of cases, how the Electricity Board will act and will assess the electricity consumption of the relevant period of alleged theft and the procedure prescribed under clause 15.8 of Regulations, 2010 have not been followed in spite of appellant submitting a written reply wherein the appellant has drawn attention of the authority concerned to the relevant provisions of Section 126 as well as the relevant provisions made in the Regulations, 2010. Since the appellant approached this Court before any final assessment order could have been passed, the respondents were fully aware of the contentions of the appellant which have already been raised in the writ petition. A final assessment order was passed after disposal of the writ petition and during the pendency of the Letters Patent Appeal, yet the authority did not look into the relevant provisions of law.

7. According to learned counsel for the appellant as per clause 15.8(viii), it is clear that in case sufficient evidence is found to establish direct theft of Electricity, then the licensee/supplier will proceed as per Section 135(1A) of the Act. As per clause 15.8(ix), the Authorized Officer is required to assess the energy consumption as per the assessment formula given in Annexure-1 to the Regulations. It is clear from the proviso to clause (xi) of Clause 15.8 that the criminal case can be registered only in case of suspected theft. If the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decisions shall be communicated to the consumer. Obviously on such dropping of the proceeding as per Sub-clause xii, in case after detailed examination of the evidence and consumption pattern of the consumer, if the licensee or supplier is convinced that a prima facie case is made out for abstraction, consumption or use of electricity dishonestly against the consumer, the Licensee or supplier shall, within 7 days of the inspection will serve a provisional assessment order assessed as per clause 15.8(xxi) of the Regulations along with show cause notice to the consumer, giving reasons as to why a case of theft should not be booked against such consumer. Such notice should also contained the details for arriving at such decision and points on which reply has to be submitted by the consumer. The Sub-clause xii is mandatory in character because of the reason that consequence of non following the provisions of sub-clause xii, is given under clause xiii, which shows that in case, such show cause notice is not served within a period of 30 days from the date of inspection, then the case of suspected theft shall be considered as dropped and no further action shall be initiated against the consumer.

8. According to learned Senior counsel for the appellant Shri M.S. Mittal, in this case firstly no provisional assessment order was ever made; secondly the communication dated 24.1.2013 is not an assessment order but it is a forwarding letter along with only a calculation Sheet which has been forwarded by the Electrical Superintending Engineer i.e., competent authority. A Calculation Sheet is prepared by the Electrical Executive Engineer, who is neither the Assessing Authority nor a competent authority to make assessment of consumption of Electricity under the Regulations, 2010. Therefore, there arises no question of serving a show cause notice on the basis of the any provisional assessment. Therefore, in view of the sub-clause xiii of clause 15.8, the respondents can not proceed to determine any liability on the appellant. It is also submitted that assuming for the shake of argument that communication dated 24.1.2013 is any short of order; firstly it is not the order of assessment of the electricity consumption; secondly even if calculation sheet could have been prepared by the Executive Engineer then, Electrical Superintending Engineer has not applied his mind to the correctness of the calculation made by the Electrical Executive Engineer nor he approved it, therefore, the calculation as made in annexed calculation sheet is only calculation made by the Executive Engineer and not by the assessing authority or competent authority.

9. Learned counsel for the appellant also submitted that the appellants case is also falling under proviso to clause xi as the appellants consumption at the relevant period of alleged theft was not less than 75% of the previous year consumption pattern. Learned counsel for the appellant has shown calculation and also submitted that the respondents themselves admitted that the appellants unit was running for 18 hours per day whereas while calculating it has taken into account 23 hour running at the appellants unit. In view of the above reason, the mistake has been committed by respondents and the appellants case is covered under proviso to sub-clause xi of clause 15.8 of the Regulations, 2010 and the respondent should not have treated it as case of electricity theft.

10. Learned counsel for the appellant then assailed the assessment order on various grounds including that the appellant was never given a copy of any reply filed by any Officer of the Electricity Board before the said competent authority and the competent authority has taken into account the extraneous facts and decided the matter with prejudice as the said authority in final assessment order dated 9th April, 2013 even observed that the appellant was fully involved in pilfering power through short circuiting of secondary terminal box. The said authority i.e., the Electrical Superintending Engineer in final assessment order dated 9th April, 2013 has not considered the plea raised by the appellant nor examined the calculation which has been submitted even by the department to find out the correctness of the calculation and to find out whether the appellants case is required to be dropped under proviso to Clause (xi) of Regulations 15.8.

11. Learned counsel for the appellant also pointed out that the Ministry of Power, Government of India has also issued a clarificatory order on 12th November, 2007, whereby it has been made clear that procedure of assessment u/s 135 of the Act will be the same as has been prescribed for the cases u/s 126 of the Act. Therefore, in view of the provisions prescribed u/s 126 of the Act also, the appellant was entitled to show cause notice before passing any assessment order. It is also submitted that, otherwise also, the appellant was entitled to reasonable opportunity of hearing before any order of assessment was passed.

12. Learned counsel for the appellant relied upon the judgment of the Calcutta High Court in the case of Hasi Mazumdar and Another Vs. The West Bengal State Electricity Board and Others, and the judgment of the Delhi high Court in the case of Harvinder Motors Vs. B.S.E.S. Rajdhani Power Ltd., wherein some similar issues, according to the appellant, were involved.

13. Learned counsel for the Jharkhand State Electricity Board (hereinafter referred to as "the Board") Shri Ajit Kumar, vehemently submitted that, there is vast difference between section 126 and section 135 of the Act. Both deals with entirely different contingencies and are independent and separate provisions. Section 135 of the Act deals with the cases of theft of electricity and finding difficulty in implementation of some of the measures, sub-Section (1A) has been added in Section 135 whereby power has been given to the licensee or supplier of the electricity to disconnect immediately the supply of electricity connection upon detection of theft of electricity by the consumer. A provision has been made so that the amount of electricity theft can be assessed and upon deposit of such assessed amount, without prejudice to the obligation of lodging of the complaint i.e. a criminal case, the electric connection may be restored. Whereas section 126 has no application to the case of theft and this provision deals with civil wrong whereunder provisional assessment order is required to be passed after affording reasonable opportunity of hearing and thereafter, final assessment order can be made. In contrast to it, in the procedure prescribed under sub-section (1A) of Section 135, no provisional assessment is required to be made. Learned counsel for the Electricity Board submitted that separate regulations also have been framed in consonance to sections 126 and 135 of the Act by exercising power conferred by Clause (x) of Sub-section (2) of Section 181 read with Section 50 of the Act. Finding some difficulties, the Electricity (Removal of Difficulties) Orders, 2005 was issued and it has been provided that certain more rule making power will be available to the State Commission u/s 50 of the Act. Be that as it may, no body has disputed the power of State Commission in issuing Regulations 2010 and the appellant has also relied on these very Regulation 2010 and submitted that these Regulations prescribed the procedure for proceeding in a case like that of appellant and the appellants own case is that these Regulations have not been followed and, therefore, the alleged assessment order dated 24th January, 2013 and all proceedings may be quashed and set aside.

14. Learned counsel for the Jharkhand Electricity Board has also relied upon the judgment of the Supreme Court delivered in the case of The Executive Engineer and Another Vs. Sri Seetaram Rice Mill, where it has made clear that the two provisions; one u/s 126 and another u/s 135 of the Electricity Act, 2003 are absolutely distinct and separate provisions and having different scope. In this case, the case has been registered u/s 135 of the Act, whereas the appellant is seeking observance of the procedure as provided u/s 126. The appellant is also seeking observance of the provision of clause 15.8 of Regulations, 2010 which are applicable to the cases of different situations. According to learned counsel for the Jharkhand State Electricity Board, the procedure of this case is prescribed u/s 135 of the Act itself as well as has been prescribed in detail under sub-clause (i) to (x) of clause 15.8 of the Regulations, 2010 and those provisions have been fully observed which are in consonance to sub-section (1A) of Section 135 of the Act. It is also submitted that the provisions contained u/s 135 or under clause 15.8 of the Regulations, 2010 are relevant for dealing the cases of theft and have been fully observed in present case and there is no need of any provisional assessment order or issuance of show cause notice and sub-clause (x), proviso to sub-clause (ix) and sub-clause (xii) etc. have no application to the facts of the case.

15. We considered the submissions of learned counsel for the parties and perused the facts as well as the law brought to our notice and we considered the judgments relied upon by the learned counsel for the parties.

16. In view of the judgments of the Honble Supreme Court delivered in the case of Sri Seetaram Rice Mill (supra) it is clear that the Section 126 and Section 135 are kept in different Chapters in the Electricity Act, 2003 and Section 126 is in Part XII of the Indian Electricity Act, 2003 whereas Section 135 is in Part XIV of the Act. The Part XII deals with the investigation and enforcement. Under this Part XII, under the heading of "Investigation and Enforcement", first Section is Section 126 which provides for assessment in a situation when on an inspection of any place or premises or after inspection of the equipments, gadgets machines, devices found connected or used, or after inspection records maintained by any person, the Assessing Officer comes to the conclusion that such person is indulging in unauthorized use of electricity, then in that situation, 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. After sub-section (1) of Section 126, by sub-section (2) of Section 126, it is provided that the order of provisional assessment shall be served upon the person obviously on the concerned person. Sub-section (3) gives a right to such person to submit his objection against the provisional assessment and the Assessing Officer is under obligation to give reasonable opportunity of hearing to such person upon whom the provisional assessment order has been served then the Assessing Officer is required to pass a final assessment order. The Assessing Officer is the Officer of the State or Board or licensee, who may be designated as such by the State Government, as per clause (a) of Explanation appended to Section 126 of the Act. Such assessment orders are appealable u/s 126 of the Act.

17. Clause 15.7 of Regulations, 2010 deals with the procedure and method of assessment of electricity charges and clause 15.7 specifically mentioned that this provision is a method of assessment of electricity charges in case of Unauthorized Use of Electricity. The Honble Supreme Court in the case of Sri Seetaram Rice Mill (supra) made it clear that in case of theft of electricity, there is element of mens rea which is not necessarily in the cases which are falling u/s 126 of the Act. Therefore, it appears that a separate procedure has been prescribed u/s 126 the Act for assessment of electricity charges in case of "Unauthorized use of Electricity" which procedure is different than the procedure prescribed under sub-section (1A) of Section 135. Not only that both Sections are falling in different chapter and covering different fields and prescribing different procedures but in a case of civil liability u/s 126, it is provided that before passing a final assessment order a provisional assessment order is to be made. It appears that there may be a situation where it is difficult to find out immediately whether it is a case of "Unauthorized Use of Electricity" or case of theft of electricity. There may be suspected cases of theft of electricity and, therefore, some safeguards have been provided under these provisions and particularly by Regulations 2010 which take care of bona fide consumer who may not suffer only on account of suspicion and at the same time the licensee or supplier of the electricity may also not be prejudiced because of that situation and, therefore, a third category has carved out which is a category of suspected theft. In case of suspected theft, as per various provisions, it will appear that till the suspected case of theft is investigated by the concerned Officer by collecting evidence, the electricity supply of the consumer may not be disconnected and at the same time it is essential to protect the interest of the licensee, who may get the benefit of supply of the electricity, the electricity supply may be continued.

18. After considering Sections 126 and 135 as well as Regulations 2010 we found that clause 15.7 in Regulations, 2010, prescribed the procedure to be followed in a case found u/s 126 of the Act. Sub-clause (i) of Clause 15.7 of the Regulations, 2010 provides which is similar to sub-section (i) of Section 126, that in case of assessment, Assessing Officer comes to the conclusion that the consumer is indulged in "Unauthorized Use of Electricity", he shall provisionally assess to the best of his judgment, the electricity charges payable by such person. Sub-clause (ii) of clause 15.7 of the Regulations, 2010 has defined the "unauthorized use of electricity". The procedure of booking a case of unauthorized use of electricity has been prescribed under sub-clause (iv) of clause 15.7 onwards. As per sub-clause (ix) of clause 15.7 of the Regulations, 2010, it has been provided that if the Assessing Officer as per clause 15.7(x) suspects that the "unauthorized use of electricity" has taken place, he shall serve a provisional assessment order assessed as per clause 15.7(xx) and (xxi) of the Regulations, 2010 with a clear notice giving reasons as to why a case of "unauthorized use of electricity" should not be booked against such consumer. Then under these Regulations, right has been given to the consumer to submit reply under sub-clause (xiv) and then opportunity of hearing is provided under sub-clauses (xvi) and (xvii), then the final assessment order is passed. The period of assessment is also prescribed as per clause (a)(xx) of clause 15.7 of the Regulations, 2010. Formula for assessment in such case is also given in sub-clause (xxi) of clause 15.7. The provisions similar to Section 127 is also incorporated in the Regulations, 2010 by providing sub-clause (xxvii), which allows the appeal against the assessment order, obviously passed u/s 126 read with clause 15.7 of the Regulations, 2010.

19. A separate provision has been prescribed for the cases of "theft" of electricity obviously, for the reason that the cases of "unauthorized use of electricity" have been separated by Section 126 of Act from the cases of theft. The two cases by their own nature are distinct in the case of "unauthorized use of electricity", there may not be an element of mens rea whereas in the case of theft, there is an element of mens rea the cases u/s 126 may also include the cases where it is not necessary to lodge criminal case whereas in a case of "theft of electricity" it is obligatory upon the Officer concerned to lodge a criminal case. At this juncture, it will be appropriate to refer the observations made by the Supreme Court in the case of Jagmodhan Mehatabsing Gujaral and Others Vs. State of Maharashtra, . The Honble Supreme Court has taken note of the cases of large scale theft of electricity and found that it is a very alarming problem faced by all the State Electricity Boards in our country which causing loss to the State Revenue running in hundreds of crores of rupees every year. The Honble Supreme Court observed that in our considered view, after proper adjudication of the cases of all those who are found to be guilty of the offence of committing theft of electricity; apart from the sentence of conviction, the Court should invariably impose heavy fine making theft of electricity, a wholly non-profitable venture. The Honble Supreme Court observed that, the most effective steps to curb this tendency perhaps could be to discontinue the supply of the electricity to those consumers temporarily or permanently, who have been caught abstracting electricity in a clandestine manner on more than one occasion. The Honble Supreme Court suggested this legislate incorporating, as a form of punishment by amending Section 39 of the Electricity Act, 1910. Therefore, by sub-section (1A) of Section 135, it has been specifically provided that the authority will be entitled to disconnect the electric supply upon detection of theft of electricity.

20. We find a difference between the procedure prescribed to Sections 126 and 135 of the Act. By procedure prescribed u/s 126, opportunities are given to the consumers to contest the assessment order which is provisional and when final assessment is made then by preferring an appeal, such procedure is not provided either under sub-section (1A) of Section 135 or under the relevant sub-clauses of Clause 15.8.

21. Clause 15.8 of Regulations 2010 is prescribing the method of assessment of electricity charges in case of theft of electricity. The heading itself made it clear that this applies to the cases of theft of electricity. Sub-Clause (I) of Clause 15.8 clearly provides that whenever a case of theft of energy is detected, the authorized officer shall carry out assessment in accordance with the procedure laid down in the section below, obviously, under Sub-Clauses made under Clause 15.8. It will be appropriate to mention that, in this procedure as prescribed under Clause 15.8 the authorized officer is competent to conduct inspection of any premises where he has received information regarding theft of the electricity, which may be from any source and he may inspect the premises suo motu with safeguards which are required to be taken at the time of inspection as provided in Sub-clause (iv) of Clause 15.8. The authorized officer is required to prepare a report giving details such as connected load, condition of meter seals working of meter and he is also supposed to mention irregularity noticed which includes noting of tampered meter, artificial means adopted for theft of energy. A report is also required to be clear and it should indicate whether sufficient evidence substantiating the fact that theft of energy was found or not, is also required to be incorporated in such report. The details of evidence are also required to be incorporated. This is far obvious reasons and to protect consumer also as this procedure will avoid manipulation of evidence.

22. Then finding the difficulty of the consumers, it has been provided that mere missing of the seal of the meter or tampered or breakage of glass window shall themselves will not be treated to be evidence for theft of electricity unless these facts are corroborated by consumption pattern of the consumer and such other evidence as may be available. This applies to the cases where the Boards officer is unable to find reasons to conclude it as a clear case of theft. Therefore, in the suspected case of theft of electricity, the corroborative evidence is required obviously, which may be available on spot at the time of inspection or obviously which may be gathered like consumption pattern of the consumer. Only in case when sufficient evidence is found to establish theft of electricity, then the electricity will be disconnected and material evidence including wire cables meter, service line etc. are required to be seized and a complaint is required to be lodged in writing to the concerned police station within 24 hours. Such authorized officer is under obligation to disconnect the electricity connection within two days from the date of inspection and is required to file a case against the consumer before the Special Court as per provision of Section 135 of the Act. Under sub-clauses (viii) and (ix) of Clause 15.8, it is provided that the assessing officer shah assess as per the assessment formula given in Annexure-1 to the Regulations. Therefore, we find that sub-Clause (x) of Clause 15.8 of the Regulations 2010 also deals with cases of suspected theft and so is Sub-clause (ix) including its proviso.

23. As we have already observed, there may be unauthorized use of electricity falling u/s 126 of the Act or there may be clear case of theft of electricity straightway falling u/s 135(1A). There may be a third type of case i.e. the case of suspected theft. To deal with a case of suspected theft, Sub-clause (x) of Clause 15.8 provides that in case of suspected theft, the authorized officer shall remove the old meter under a seizure memo and seal it in presence of the consumer or his representative and the authorized officer. Because it is a case of suspected theft only, it has been provided that the electric supply will not be discontinued but it will be continued with a new meter. In such cases the old meter shall be tested in presence of the consumer and the authorized officer at a third party facility approved by the commission from where a test report will be obtained in writing. In a case of suspected theft, such authorized officer is required to record reason of suspected theft in the premises in his report. Not only this, that in a case of suspected theft, the electricity of the consumer is required to be continued but if it is found that the consumption pattern for the last one year of the consumer is reasonably uniformed and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer; meaning thereby, by this provision it has been provided that, if in any case, no substantial gain to the consumer from his act, then it may be presumed that it was not a case of theft.

24. Sub-clause (xiv) of Clause 15.8 is also relevant, which provides that theft shall not be limited to physical interference with the meter found during physical inspection. It shall also include theft committed by resorting to external methods, such as, remote control/high voltage injunction etc., which interfere with the accurate registration of the energy consumed. It has further been made clear in that very clause that theft of electricity may be established by analysis of metering data downloaded by a third party facility approved by the commission and then it has been provided that in case theft of energy is determined by way of meter down load, the provisional assessment order assessed as per Clause 15.8(xxi) of the Regulations along with show cause notice will be sent to the consumer/user. Sub-clause (xv) gives right to such a person/consumer to file objection against the provisional assessment then after affording reasonable opportunity of hearing, assessment order is required to be passed as provided under sub-clause (xx) onwards. In Section 135 as a whole or under chapter (xiv) dealing with the "offences and penalty" no provision has been made providing for appeal against such assessment order. The obvious reason is that separate procedure has been prescribed to deal with such assessment under part (xv) under sub-Section (5) and (6) of Section 154 giving power to the Special Courts constituted u/s 153 of the Act to decide about the civil liability. Therefore, from all angle as well as from all point of view and nature of the activity of the consumer and allegation, different procedures have been prescribed not only by Regulations of 2010 but the Act itself u/s 126 in chapter (xii) and another u/s 135 in chapter (xiv) of the Act.

25. In view of the above, we cannot read the communication dated 12th November, 2007 of the Ministry of Power as a clarificatory order mixing the two subjects for the purpose of assessment of energy consumed, one under-Section 126 and another u/s 135: or one Clause 15.7 and another Clause 15.8 of the Regulations of 2010 as one and the same.

26. It will be appropriate to mention here that u/s 127 which is statutory provision, right to appeal has been provided only against the order passed u/s 126 and not against the order passed under provision of Section 135(1A) or under clause 15.8 of the Regulations 2010. Therefore, by implication or by clarification, it cannot be provided that the orders of assessment, which are passed under the provision of Section 135(1A) or under-Clause 15.8 of the Regulations 2010 for the cases of theft are appealable irrespective of the fact that for those orders, a provision has been made under the Act empowering the Special Court to examine those assessment orders u/s 154(5) and (6) of the Act.

27. Coming to the facts of the case, it is true that on 19th January, 2013, the appellant gave a letter to the respondent Board informing that the meter reading room seal has been broken and one earthing wire also has been disconnected by some miscreants to harm the appellants unit and after this letter, the Inspection Team visited the appellants site on 23rd January, 2013 and inspected the site and the meter and prepared the inspection report. In that inspection report itself, it is mentioned that it is a case of theft of electricity and first information report has been lodged, as per the provisions of law. Therefore, in the opinion of the inspecting team, it was not a case of suspected theft or a case of only unauthorised use of electricity. In the inspection report, reason for drawing inference of theft has been mentioned in paragraph 5, which we have already referred above. In consequence to this inspection report, a first information report was lodged on the same date i.e. on 23rd January, 2013. The first information report or the criminal prosecution initiated is not under challenge before us. The appellant was then served with communication dated 24th January, 2013 (Annexure 6) which is purported to be the assessment bill u/s 126 of the Act. In Section 126 of the Act, only assessment is made of the electricity consumed by the person who has indulged in unauthorised use of electricity. In the said communication dated 24th January, 2013, it is also mentioned that a first information report has already been lodged on 23rd January, 2013 against the appellant for the allegation of pilferage of electricity. This action could have been taken under Chapter XIV and u/s 135 and specifically sub-section (1A) as sub-section (1) of section 135 provides that theft of electricity shall be punishable with imprisonment for a term which may extend for three years or with fine or with both. Sub-section (1A) provides forthwith disconnection of supply of electricity upon detection of theft of electricity. This procedure was followed and inspite of following this procedure, it appears that under wrong impression, it has been mentioned that the bill annexed with communication dated 24th January, 2013 is a provisional assessment bill u/s 126 of the Act. As per calculation sheet, the bill was prepared adopting the formula given in Annexure 1 to the Regulations 2010 and not according to the formula given in sub-clause (xxi) of Clause 15.7 of the Regulations. Therefore, for the purpose of preparing a bill, the procedure of Clause 15.8 was followed and not Clause 15.7. This also supports our view that mention of provisional assessment bill or bill u/s 126 of the Act is under mistaken belief.

28. We are of the considered opinion that because of sending the communication dated 24th January, 2013, annexing calculation sheet which is calculation of the demand against the person who is found to be indulged in theft will not make any difference nor it will convert the 7 proceeding into one u/s 126 of the Act when the facts are very clear as on the date of inspection itself it was treated to be a case of electricity theft and not even a case of suspected theft of electricity, much less to the case of unauthorised consumption of electricity, for which provision is made u/s 126 of the Act.

29. We are of the view that procedure as given in sub-clauses (x) to (xv) of Clause 15.8 have no application to the cases of electricity theft. The reason for our holding so is apparent from the language used in the various sub-clauses of Clause 15.8 of the Regulations. As per sub-clause (iv) of Clause 15.8, the inspection team after following the requirement mentioned in this clause, when inspect the site is required to prepare a report giving details such as connected load, condition of meter seal, working of meter also required to mention any irregularity notice such as tampered meter, artificial means adopted for theft of energy as per sub-clause (vi) of Clause 15.8, report is required to indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence are also required to be recorded in the report. As per sub-clause (viii) of Clause 15.8, in case sufficient evidence is found to establish direct theft of electricity, the licensee or supplier shall disconnect the supply of electricity and all materials are required to be seized, which may be evidence wires, cables, meter, service line etc. and the complaint is required to be lodged in writing in the concerned police station about the theft and it is required to be done within 24 hours, then authorized officer is required to file a case against the consumer in a designated Special Court as per the provisions of Section 135 of the Act within two days from the date of inspection and then as per the last clause relevant for the theft cases, which is sub-clause (ix) of Clause 15.8, the authorized officer is required to assess the energy consumption as per assessment formula given in Annexure-1 of the Regulations. After this sub-clause (ix) of Clause 15.8, word of "suspected theft" has been used. After Sub-clause (ix) of Clause 15.8, provisions deals with cases of "suspected theft". From Sub-clause (x) of Clause 15.8, words suspected theft have been used. For the cases of "suspected theft" a separate procedure has been provided and before reaching to the final conclusion of theft, authorized officer is allowed to collect the evidence and then find out whether such alleged theft resulted into less consumption of electricity by the assessee during the relevant period and if it is found that it is a marginal difference by 25% and then the proceeding is required to be dropped. Such is not in a case when a definite opinion is formed by the authorized officer about the commission of theft. Non-making of assessment order in time as provided under sub-clause (xiii) of Clause 15.8. Sub-clause (xii) of Clause 15.8 provides for provisional assessment and as we have observed that it applies in a case where the case is of suspected theft and it is further clear from sub-clause (xiv) of Clause 15.8 which says that even in a case where no physical interference is found with the meter during the inspection, even then a theft can be found it by resorting to external method, such as, remote control/high voltage injection etc., the registration of energy consumed has been interfered. Apart from this in a suspected case of theft, theft can be established by analysis of metering data down loaded by a third party facility approved by the commission. Because of this reason that, some evidence may be found subsequently or on investigation or on assessment, opinion of commission of theft can be formed, a different procedure has been prescribed for the cases where there is no firm opinion has been formed on spot by the officer concerned about the commission of theft. Because of this reason it appears that before passing any final assessment order, a provisional assessment is required to be made and served on the assessee under Clause 15.8, under sub-clause (xii) and (xviii) of Clause 15.8 which alone entitled the consumer to submit his objection, whereas for assessment under sub-clause (ix) of Clause 15.8 such opportunity is not given. Therefore the consumer can file objection only in a case when order has been served under Clause 15.8(xii) or (xiv) of the Regulations.

30. Sub-clause (xxv) of Clause 15.8 in consonance with the Act provides in all cases where theft of electricity has been detected, the case shall be filed before appropriate Court for decision in the matter unless offence is compounded u/s 152 of the Act. The suspected case of theft may stand converted to the case of theft but before converting such case to the case of theft, the licensee is required to take care of proviso to sub-clause (ix) of Clause 15.8 as well as sub-clauses (xii) and (xiii) of Clause 15.8. If a case of consumer is covered under the proviso to sub-clause (ix) of Clause 15.8 and the procedure as provided under sub-clauses (xii) and (xiii) of Clause 15.8 did not follow, then those cases of "suspected theft" are required to be dropped and the case of "theft" cannot be dropped because of non-making of provisional assessment or non-serving of notice as provided under sub-clause (xiii) of Clause 15.8 of the Regulations.

31. In this case, as we have already noticed, the procedure was followed and rightly followed of Section 135 read with Clause 15.8 of the Regulations and particularly as provided in Sub-Clauses (i) to (ix). There was no need to follow the procedure of sub-clauses (x) to (xv). The mentioning of provisional assessment bill u/s 126 of the Act in communication dated 24th January, 2013 and calculation-sheet is not relevant and cannot be treated as provisional assessment u/s 126 of the Act or Clause 15.7 of the Regulations.

32. In view of the above reasons, the communication dated 24th January, 2013 and the calculation sheet annexed with the said communication, need not be set aside. The appellant was given opportunity to appear before the concerned authority in view of the order passed by this Court and thereupon the competent authority has passed the order of assessment during the pendency of the Letters Patent Appeal on 9th April, 2013.

33. Learned counsel for the appellant questioned the final assessment order dated 9th April, 2013 by filing rejoinder to the counter affidavit filed by the Electricity Board.

34. However, we are of the opinion that against this order, statutory remedy is available to the appellant u/s 154(5) and (6) of the Act. Therefore, we are of the considered opinion that it is not a fit case where we should interfere in the order of assessment which was passed after giving opportunity to the appellant and can be subject matter before the Special Court where the case is pending.

35. In view of the above reasons, we do not find any merit in this Letters Patent Appeal and it is, accordingly, dismissed. In view of the above reasons, the interim order passed by this Court dated 22nd February 2013 stands set aside and the Board will be entitled to recover the assessed amount from the bank guarantee or otherwise.