- (1.) I. The subject of challenge, a recount of the chequered history 1. The writ petition was originally disposed of on 09.09.2011 and in appeal filed against the judgment in LPA No.1900 of 2011. The Division bench has remitted the mater for fresh consideration in the light of the observations made thereunder.
(2.) The case has had a chequered career. The petitioner had been served with a notice under Section 135 of the Electricity Act, 2003 (in brief the "Act") on 15.10.2010 from AEE (Commerce), Sub Division, Punjab State Power Corporation Ltd. imputing that the petitioner had been guilty of tampering with the meter installed in the factory premises and that the petitioner was required to pay Rs. 4,33,24,039/-. A FIR No.44 dated 15.10.2010 had been registered at the Police Station Anti Power Theft, Ludhiana against the Directors and the company and it was challenged in CRM-M No.29677 of 2012 . The petitioner had challenged the notice which was issued making the assessment and had come by means of a writ petition in CWP No.1455 of 2011 treating the assessment made against the petitioner as one against Section 126 of the Act. The challenge had been to the constitutional vires of Sections 126 and 127 of the Act which provided for the right of appeal and the corresponding Regulation 21 of the Punjab State Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2007. The Court found that there was no merit in the challenge for the vires of the provision and directed to be sent to a Single Judge for decision. It appears that this petition was allowed to be dismissed as withdrawn and the writ petition was filed on an altered contention that the imputation of theft against the petitioner was wrongly made and the assessment made under the Regulations prescribed therefor for assessment in cases of theft were not applicable to the petitioner. This Court had originally taken the view that the assessment made on alleged proof of tampering of the meter would come within the definition of unauthorized use and the assessment made was only an assessment which was amenable for an appeal under Section 127 of the Electricity Act and that a challenge in the writ petition was not permissible. It was this order that was originally passed by this Court on 09.09.2011 that was set aside in appeal by the Division Bench on reference to a judgment of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another Vs. Sri Seetaram Rice Mill, 2012 2 SCC 108 that there was a distinction between the assessments made under Section 126 and 135 of the Act and assessment for theft cannot be a subject of appeal under Section 127. II. Contention of the petitioner in the light of provisions of 'unauthorised use', 'theft', assessments and special courts
(3.) Learned counsel appearing on behalf of the petitioner refers to me relevant Regulations that govern the issue relating to theft and points out that unlike a case of assessment for unauthorized use, which could be either willful or not willful and therefore, a right of appeal is provided under Section 127, the assessment made for theft under the relevant Regulations are more stringent and contained no provision for an appeal. On the other hand, the Regulations only contemplate a right of representation against assessment made as per prescribed formula of the Regulations. The provisions of the Electricity Act makes possible prosecution for the offence of theft in a Special Court constituted for the purpose and if such a prosecution is made, the civil liability determined through the assessment with or without consideration of representation made against such assessment will be made independently by the Special Court. The reference to these provisions become essential in view of the preliminary objection that has been taken by the Power Corporation that against the assessment which has been made, the petitioner has no right to challenge by means of a writ petition and the remedy would be only to approach the Special Court for appropriate redressal. There have been certain pronouncements of this Court itself where I have directed the party challenging the assessment made for theft to take it as an assessment made under Section 126 and that only an appeal could be filed. The counsel for the respondent himself points out to the decision in Tower Vision India Pvt. Ltd. Vs. DHBVNL and others in CWP No.15438 of 2014 decided on 5.8.2014 passed by this Court but I find that the said decision has been rendered without reference to the relevant Regulations and the law would required to be stated correctly in the light of the relevant provisions. I will, therefore, go into slightly elaborate consideration of the relevant provisions and more particularly, in the light of the observations of the Division Bench while remanding the matter.;