1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Bhom Raj Gandhi vs. Jodhpur Vidhyut Vitaran Nigam Limited, Jodhpur & Ors. (S.B.C.WRIT PETITION NO.5915/06) Dated:- 15.11.2007. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Ajay Vyas, for the petitioner. Mr. Ravi Bhansali, for the respondents no. 1 to 3. This writ petition is directed against provisional assessment order dated 27.2.06(Annexure 4) passed by the Assistant Engineer(Vigilance), Jodhpur Vidhyut Vitaran Nigam Limited, Bikaner , whereby a demand of Rs.5,34,600/- has been created against the petitioner. The petitioner is the sole proprietor of a business concern M/s. Hanuman Oil Mills. An electric connection was released by the Jodhpur Vidhyut Vitaran Nigam Limited to the petitioner's industrial establishment at Bajju. A vigilance checking was made by the respondent no. 2 at the premises of the petitioner's industrial establishment and the checking report was prepared. As per the checking report, the petitioner was found indulged in theft of electricity by taking the electricity directly from 11 K.V. Line by putting jumper over it. 2 On the basis of the Vigilance Report, the respondent no. 2 made provisional assessment of the electricity charges vide provisional assessment order dated 27.2.06(Annexure 4) whereby a liability of 5,34,600/- was created against the petitioner and a notice was ordered to be issued . In pursuance of the said provisional assessment , vide notice dated 9.3.06 (Annex.5), the petitioner was directed that the aforesaid amount assessed may be deposited within a period of 7 days, failing which, the electricity supply shall be disconnected in conformity with the provisions of Section 24(1) of the Indian Electricity Act, 1910 without any further notice. Thus, the petitioner is aggrieved by the aforesaid provisional assessment order and demand created, in pursuance thereof. A reply to the writ petition has been filed by the respondents. It is not in dispute that the provisional assessment (Annex.4) was made for the reason that the petitioner was found indulged in theft of electricity. It is stated that the demand raised vide Annexures 4 and 5 , is in addition to the earlier dues which kept on increasing on account of non-payment of the existing demand by the petitioner. The respondents have taken the stand that the electric supply to the petitioner already stands disconnected on account of non-payment of regular demand . After detecting the theft of the electricity by the petitioner, the 3 illegal connection has been removed which cannot be said to be a dis-connection of power supply which already stands disconnected since 2001. According to the respondents, the demand in pursuance of the provisional assessment has been created in accordance with the provisions of the Electricity Act, 2003( in short “the Act of 2003” hereinafter). It is contended by the learned counsel for the petitioner that as per the provisions of sub-section(3) of Section 126 , after passing of the provisional assessment order, the order is required to be served to the person concerned and after service of the notice, the person concerned is entitled to raise objections, if any, and the assessing officer is under an obligation to give an opportunity of hearing to such person before passing final order of assessment of the electricity charges payable by such person. The learned counsel urged that admittedly, after passing of the provisional assessment order, no final assessment order has been passed in terms of sub-section(3) of Section 126 of the Act of 2003, therefore, the demand notice issued straight away without assessing the liability finally after giving an opportunity of hearing to the petitioner, is ex facie illegal and arbitrary. Per contra, the learned counsel appearing on behalf of the respondents contended that since it is a case of theft of the 4 electricity by the petitioner , therefore, in view of the provisions of Section 135, the fine can be imposed for theft of the electricity and the provisions of assessment referred to by the petitioner cannot be resorted to. Thus, the demand created is absolutely in accordance with law. A bare perusal of the provisions of Section 126(1) of the Act of 2003 goes to show that 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. Thus, the said provisions deals with the assessment of the electricity charges payable by the person for the unauthorised use of electricity. Further, as per the provisions of sub-section(2) of Section 126, the provisional assessment order is required to be served upon the person in the manner prescribed. Thereafter, as per provisions of sub-section(3) of Section 126, the person concerned is entitled to raise objection, if any, against the provisional assessment order before the assessing officer, who is under an obligation to afford a reasonable opportunity of hearing to the person concerned before passing a final order of 5 assessment of the electricity charges payable by such person, unless the person served with the order of provisional assessment accepts such assessment and deposits such amount within 7 days of service of provisional assessment order upon him. Thus, the stand taken by the respondents that no final assessment order is required to be passed is absolutely contrary to the provisions of Section 126 of the Act of 2003. The contention of the learned counsel for the petitioner that since the petitioner has been found indulged in theft of electricity ,therefore, in view of provisions of Section 135 of the Act of 2003, the assessment made cannot be said to be unjust and improper and the provisions of Sections 126 and 127 are not applicable, to say the least, is absolutely mis-conceived. The provisions of Section 135 deals with theft of electricity and prescribes the punishment of imprisonment and fine if the person is convicted for an offence under the said section. The person charged with the offences referred to in Sections 135 to 139 are required to be tried by the Special Court created by the State Government in conformity with the provisions of Section 153 of the Act of 2003. The imposition of punishment or fine or with both on conviction for an offence u/s 135 has nothing to do with the levy of electricity charges for unauthorised use of the electricity. The liability for payment of electricity charges for 6 unauthorised use of the electricity has to be assessed strictly in accordance with the provisions of Section 126 of the Act of 2003. Thus, without passing the final assessment order in terms of Section 126(3) of the Act of 2003, the petitioner cannot be compelled to deposit the amount under the provisional assessment order unless, the same is accepted by him in pursuance of the notice issued. The respondent authority is under an obligation to pass final assessment order after giving a due opportunity of hearing to the petitioner and considering the objections, if any, raised by him . The petitioner is not entitled for the relief for quashing of the provisional assessment order. However, demand notice dated 9.3.06 (Annexure -5) directing the petitioner to deposit the electricity charges assessed under provisional assessment order, without passing final assessment order in terms of Section 126(3) of the Adct of 2003 deserves to be quashed. At this stage, the petitioner is not entitled for the relief of restoration of electricity supply which already stands disconnected in the year 2001 on account of default in payment of electricity charges. Accordingly, the writ petition is partly allowed. Demand notice dated 9.3.06(Annexure-5) is quashed and set aside.The petitioner is directed to appear before the Assessing Officer on 15.12.2007 and submit his objections, if any, against the 7 provisional assessment order. The Assessing Officer shall pass final order of assessment of electricity charges payable by the petitioner after due consideration of the objections raised by the petitioner and giving him a reasonable opportunity of hearing in terms of Section 126(3) of the Act of 2003. No order as to costs. (SANGEET LODHA),J.