REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8859  OF 2011 (Arising out of SLP (C) No.36166 of 2010)

The Executive Engineer & Anr. …  Appellants

Versus

M/s Sri Seetaram Rice Mill           … Respondent

J U D G M E N T

Swatanter Kumar, J.

1. Leave granted.

2. Over a period of time, it was felt that the performance  

of the State Electricity Boards had deteriorated on account of  

various factors.  Amongst others, the inability on the part of  

the State Electricity Boards to take decisions on tariffs in a  

professional  and independent  manner  was  one  of  the  main  

drawbacks in their functioning.  Cross-subsidies had reached  

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unsustainable levels.  To address this issue and to provide for  

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distancing of  governments from determination of  tariffs,  the  

Electricity Regulatory Commissions Act, 1998 (hereinafter, ‘the  

1998 Act’) was enacted in addition to the existing statutes like  

Indian Electricity Act,  1910 (hereinafter,  ‘the 1910 Act’)  and  

the Electricity (Supply) Act, 1948 (hereinafter, ‘the 1948 Act’).  

For a considerable time, these three legislations remained in  

force, governing the electricity supply industry in India.  The  

Boards created by the 1948 Act and the bodies created under  

the 1998 Act, as well as the State Governments, were provided  

distinct roles under these statutes.  There was still overlapping  

of  duties  and  some  uncertainty  with  regard  to  exercise  of  

power  under  these  Acts.   To  address  the  issues  like  

deterioration in performance of the Boards and the difficulties  

in  achieving  efficient  discharge  of  functions,  a  better,  

professional and regulatory regime was introduced under the  

Electricity Bill,  2001, with the policy of  encouraging private  

sector  participation  in  generation,  transmission  and  

distribution of electricity and with the objective of distancing  

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regulatory  responsibilities  from  the  Government  by  

transferring the same to the Regulatory Commissions.  The -

need for harmonizing and rationalizing the provisions of  the  

earlier statutes was met by creating a new, self-contained and  

comprehensive legislation.  Another object was to bring unity  

in legislation and eliminate the need for the respective State  

Governments to pass any reform Act of their own.  This Bill  

had progressive features and strived to strike the right balance  

between the economic profitability and public purpose given  

the current realities of the power sector in India.  This Bill was  

put to great discussion and then emerged the Electricity Act,  

2003 (for short,  ‘the 2003 Act’).   The 2003 Act had notably  

provided for private sector participation, private transmission  

licences for rural and remote areas, stand alone systems for  

generation and distribution, the constitution of an Appellate  

Tribunal,  more  regulatory  powers  for  the  State  Electricity  

Regulation  Commission  and  provisions  relating  to  theft  of  

electricity.  The additional provisions were introduced in the  

2003 Act in relation to misuse of  power and punishment of  

malpractices such as over-consumption of sanctioned electric  

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load which are not covered by the provisions relating to theft;  

all of which had significant bearing upon the revenue focus -

intended by the Legislature. This is the legislative history and  

objects and reasons for enacting the 2003 Act.

3. To ensure better regulatory, supervisory and revenue  

recovery system, as expressed in the objects and reasons of  

the 2003 Act, there was definite concerted effort in preventing  

unauthorized use of electricity on the one hand and theft of  

electricity on the other.  The present case falls in the former.  

According to the appellant, there was breach of the terms and  

conditions  of  the  Standard  Agreement  Form  for  Supply  of  

Electrical  Energy  by  the  Grid  Corporation  of  Orissa  Ltd.  

(hereinafter,  ‘the  Agreement’)  as  the  consumer  (respondent  

herein) had consumed electricity in excess of the contracted  

load.   

FACTS

4. We may  briefly  refer  to  the  facts  giving  rise  to  the  

present appeal.  Respondent herein, a partnership firm, claims  

to be a small scale industrial unit engaged in the production of  

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rice.   For  carrying  on  the  said  business,  it  had  obtained  

electric  supply  under  the  Agreement.   Between the  present  

appellant -

No.1 and the respondent the Agreement dated 9th December,  

1997  was  executed  for  supply  of  power  to  the  respondent.  

Keeping  in  view  the  contracted  load,  the  respondent  was  

classified as ‘medium industry category’.  This category deals  

with the contract demand of 99 KVA and above but below 110  

KVA. According to the respondent, since the day of connection  

of  power  supply,  the  meter  and  all  other  associated  

equipments had been inspected by the appellants.   On 10th  

June,  2009,  the  Executive  Engineer,  Jeypore  Electrical  

Division and SDO, Electrical MRT Division, Jeypore inspected  

the business premises of the respondent’s unit and dump was  

conducted.  These officers issued a dump report by noticing as  

follows:

“Dump of the Meter taken.  Calibration of  meter done and error found within limit.  If  any abnormality detected in Dump, it  will be intimated later on.”

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5. It is the case of the respondent that no intimation was  

given to it as to finding of defects if any, in dump.  On 25 th  

July, 2009, provisional assessment order bearing No.854 was  

issued by the appellants to the respondent.  Intimation -

bearing No.853 had also been issued on the same day which  

informed the respondent that there was unauthorized use of  

electricity  falling  squarely  within  the  ambit  of  provisions  of  

Section 126 of the 2003 Act.  In the dump report dated 10 th  

June, 2009, it was stated that there was unauthorized use of  

electricity and Maximum Demand (hereinafter MD) had been  

consumed up to 142 KVA.  On this basis, the appellant passed  

the order of provisional assessment by taking the contracted  

demand as that applicable to large industry.  The demand was  

raised, assessing the consumer for the period from June 2008  

to  August  2009  for  a  sum  of  Rs.7,77,300/-.   This  was  

computed for 15 months at the rate of Rs.200 per KVA (i.e.,  

tariff for large industry) multiplied by two times, aggregating to  

the claimed amount.  Vide the provisional assessment order  

dated 25th July,  2009, assessment was made under Section  

126(1) of the 2003 Act for unauthorized use of electricity, the  

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respondent was required to file objections, if any, and to also  

pay  the  amount.   The  relevant  part  of  the  said  provisional  

assessment order reads as under :

“And  Whereas  you  are  entitled  to  file  objections against the aforesaid -

provisional  assessment  order  under  Section  126(3)  of  Electricity  Act,  2003,  within  30  days  from receipt  hereof  and  further  entitled  to  appear  before  the  undersigned for an opportunity of  being  heard  on  25.08.2009  during  working  hours from 11.00 AM to 5.00 PM.

And Whereas you are further entitled u/s  126(4)  to  deposit  the  aforesaid  amount  within  7  days  and  upon  such  deposit  being made within 7 days, you shall not  be subject to any further liability or any  action by any authority whatsoever.

And  Whereas  if  you  fail  to  file  the  objection  within  30  days  from  receipt  hereof,  the  undersigned  shall  presume  that  you  have  no  objection  to  the  provisional  assessment  and  the  undersigned  shall  proceed  to  pass  final  order  u/s  126(3)  on  assessment  of  electricity charges payable by you.

And Whereas, if you fail to appear before  the undersigned at the aforesaid date and  time  after  filing  objections,  if  any,  the  undersigned  shall  proceed  to  pass  the  final order under section 126(3), based on  the  objection filed  by  you  and evidence  available on record.”

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6. The  respondent  did  not  file  its  objections/reply  but  

challenged  the  said  provisional  assessment  order  and  the  

intimation  of  unauthorized  use  before  the  High  Court  of  

Orissa, Cuttack by filing writ petition No.WP(C) No.12175 of -

2009 on the grounds of lack of authority and jurisdiction on  

the  part  of  the  Executive  Engineer  to  frame the  provisional  

assessment by alleging unauthorized use of electricity since 4th  

June,  2008.  It  was also contended that no inspection had  

been conducted in the business premises till  date of  dump,  

i.e., 10th June, 2009 when unauthorized use of electricity was  

found.   The  respondent  also  challenged  the  maintainability  

and sustainability  of  the order of  provisional  assessment in  

calculating the dump charges for a period of 15 months from  

June  2008  to  August  2009  on  the  basis  of  dump charges  

relating to large industry while the respondent was classified  

as medium scale industry.  It was also the contention raised  

by the respondent before the High Court that the provisions of  

Section 126 of the 2003 Act were not attracted in the present  

case at all.  This claim of the respondent was contested by the  

appellants,  as  according  to  them,  unauthorized  use  of  

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electricity as defined under Section 126 will come into play as  

per clause (b) of the Explanation appended to Section 126 of  

the 2003 Act.  The dump report dated 10th June, 2009 and the  

intimation dated 25th July, 2009 had been sent showing -

overdrawal  of  MD  where,  according  to  the  appellants,  the  

respondent had consumed electricity ‘by means unauthorized  

by the licencee (overdrawal of maximum demand)’ and thereby  

breached  the  Agreement  and,  therefore,  the  provisional  

assessment order and the intimation were fully justified.   

7. The  High  Court,  vide  impugned  judgment,  accepted  

the  case  of  the  respondent  and  held  that  the  words  

‘unauthorized  use  of  electricity’  and ‘means’  as  provided  in  

Explanation to Section 126 of the 2003 Act were exhaustive.  

Overdrawal  of  MD  would  not  fall  under  the  scope  of  

‘unauthorized use of electricity’ as defined under the 2003 Act,  

and the appellants had no jurisdiction to issue the intimation  

in question and pass the assessment order in terms of Section  

126 of the 2003 Act.  Aggrieved by the judgment of the High  

Court, the appellants have filed the present appeal by way of a  

special leave petition before this Court.

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Questions for Determination :

1. Wherever the consumer consumes electricity in excess of  

the maximum of the contracted load, would the -

provisions of Section 126 of the 2003 Act be attracted on its  

true scope and interpretation?

2. Whether the High Court, in the facts and circumstances  

of  the  case,  was  justified  in  interfering  with  the  

provisional order of assessment/show cause notice dated  

25th July,  2009,  in  exercise  of  its  jurisdiction  under  

Article 226 of the Constitution of India?

3. Was the writ petition before the High Court under Article  

226  of  the  Constitution  of  India  not  maintainable  

because of a statutory alternative remedy being available  

under Section 127 of the 2003 Act?

Discussion on Merits  

1. Wherever  the  consumer  consumes  electricity  in  excess of the maximum of the connected load, would  the  provisions  of  Section  126  of  the  2003  Act  be  attracted on its true scope and interpretation?

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8. On the simple analysis of the facts as pleaded by the  

parties, it is contended on behalf of the respondent that the  

provisions of Section 126 of the 2003 Act are not attracted and  

no liability could be imposed upon them by the authorities in  

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exercise of their power under that provision.  Even if the case  

advanced by  the  appellants  against  the  respondent  without  

prejudice and for the sake of argument is admitted, even then,  

at best, the demand could be raised under Regulation 82 of  

the  Orissa  Electricity  Regulatory  Commission  Distribution  

(Condition  of  Supply)  Regulations,  2004  (for  short,  ‘the  

Regulations’).  But recourse to the provisions of Section 126  

was impermissible in law.  The contention is that the case of a  

consumer  consuming  the  electricity  in  excess  of  maximum  

and the installed load does not fall within the mischief covered  

under  Section 126 of  the  2003 Act.   To put  it  plainly,  the  

argument  is  that  the  appellants  lack  inherent  authority  to  

raise such demand with reference to the present case on facts  

and law both.

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9. On the contra, submission on behalf of the appellants  

is that the case of excessive consumption of power beyond the  

sanctioned load would be a case falling within the ambit of  

Section 126 of the 2003 Act.  Section 126 of the 2003 Act is  

incapable  of  an interpretation which would  render  the  said  

provision otiose in cases which do not specifically fall under -

Section  135  of  the  2003  Act.   In  order  to  answer  these  

contentions more precisely, we find it appropriate to examine  

the question framed above, under the following sub-headings:

(a) Interpretation;

(b) Distinction between Sections 126 and 135 of the 2003  

Act;

(c) The ambit and scope of Section 126 with reference to the  

construction  of  the  words  ‘unauthorised  use’  and  

‘means’; and

(d) Effect and impact of change in applicability of tariff upon  

the  power  of  assessment  in  accordance  with  the  

provisions of the 2003 Act and the relevant Regulations  

in the facts of the case.   

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1(a) Interpretation

10. First and foremost, we have to examine how provisions  

like Section 126 of the 2003 Act should be construed.  From  

the objects and reasons stated by us in the beginning of this  

judgment, it is clear that ‘revenue focus’ was one of the -

principal  considerations  that  weighed  with  the  Legislature  

while enacting this law.  The regulatory regime under the 2003  

Act empowers the Commission to frame the tariff, which shall  

be  the  very  basis  for  raising  a  demand  upon  a  consumer,  

depending upon the category to which such consumer belongs  

and the purpose for which the power is sanctioned to such  

consumer.  We are not prepared to accept the contention on  

behalf of the respondent that the provisions of Section 126 of  

the 2003 Act have to be given a strict and textual construction  

to  the  extent  that  they  have  to  be  read  exhaustively  in  

absolute  terms.   This  is  a  legislation  which  establishes  a  

regulatory regime for the generation and distribution of power,  

as well as deals with serious fiscal repercussions of this entire  

regime.  In our considered view, the two maxims which should  

be applied for interpretation of such statutes are ex visceribus  

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actus  (construction of the act as a whole) and  ut res magis  

valeat  quam pereat (it  is  better  to  validate  a  thing  than to  

invalidate  it).   It  is  a  settled  cannon  of  interpretative  

jurisprudence that the statute should be read as a whole.  In  

other words, its different provisions may have to be construed  

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together to make consistent construction of the whole statute  

relating  to  the  subject  matter.   A  construction  which  will  

improve the workability of the statute, to be more effective and  

purposive,  should  be  preferred  to  any  other  interpretation  

which may lead to undesirable results.

11. It  is  true  that  fiscal  and  penal  laws  are  normally  

construed strictly but this rule is not free of exceptions.  In  

given  situations,  this  Court  may,  even  in  relation  to  penal  

statutes,  decide  that  any  narrow  and  pedantic,  literal  and  

lexical  construction  may  not  be  given  effect  to,  as  the  law  

would  have  to  be  interpreted  having  regard  to  the  subject  

matter  of  the  offence  and  the  object  that  the  law seeks  to  

achieve.  The provisions of Section 126, read with Section 127  

of the 2003 Act, in fact, becomes a code in itself.  Right from  

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the initiation of the proceedings by conducting an inspection,  

to the right to file an appeal before the appellate authority, all  

matters  are  squarely  covered  under  these  provisions.   It  

specifically provides the method of computation of the amount  

that  a  consumer  would  be  liable  to  pay  for  excessive  

consumption of the electricity and for the manner of -

conducting assessment proceedings.  In other words, Section  

126 of the 2003 Act has a purpose to achieve, i.e., to put an  

implied  restriction  on  such  unauthorized  consumption  of  

electricity.   The  provisions  of  the  2003  Act,  applicable  

regulations and the Agreement executed between the parties  

at the time of  sanction of  the load prohibit  consumption of  

electricity in excess of  maximum sanctioned/ installed load.  

In the event of default, it also provides for the consequences  

that  a  consumer  is  likely  to  face.   It  embodies  complete  

process  for  assessment,  determination  and  passing  of  a  

demand  order.   This  defined  legislative  purpose  cannot  be  

permitted  to  be  frustrated  by  interpreting  a  provision  in  a  

manner not intended in law.  This Court would have to apply  

the  principle  of  purposive  interpretation  in  preference  to  

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textual interpretation of the provisions of Section 126 of the  

2003 Act.  We shall shortly discuss the meaning and scope of  

the  expressions  used  by  the  Legislature  under  these  

provisions.   At  this  stage,  suffice  it  to  note  that  this  Court  

would prefer to adopt purposive interpretation so as to ensure  

attainment of the object and purpose of the 2003 Act, -

particularly, of the provisions of Section 126 in question.  We  

may usefully refer to the judgment of this Court in the case of  

Balram Kumawat v. Union of India & Ors. [(2003) 7 SCC 628]  

wherein this Court discussed various tenets of interpretation  

and  unambiguously  held  that  these  principles  could  be  

applied even to the interpretation of a fiscal or a penal statute.  

This Court held as under :

“20. Contextual reading is a well-known  proposition  of  interpretation  of  statute.  The  clauses  of  a  statute  should  be  construed  with  reference  to  the  context  vis-a-vis  the  other  provisions  so  as  to  make  a  consistent  enactment  of  the  whole  statute  relating  to  the  subject- matter.  The rule of  'ex visceribus actus'  should  be  resorted  to  in  a  situation  of  this nature.

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21. In State of West Bengal v. Union of  India  [1964]  1  SCR  371],  the  learned  Chief Justice stated the law thus :

"The  Court  must  ascertain  the  intention  of  the  Legislature  by  directing its attention not merely to  the clauses to be construed but to  the entire statute; it must compare  the  clause  with  the  other  parts  of  the law, and the setting in which the  clause to be interpreted occurs."

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22. The said principle has been reiterated  in R.S. Raghunath v. State of Karnataka  and Anr. [AIR 1992 SC 81].

23.  Furthermore,  even  in  relation  to  a  penal  statute  any narrow and pedantic,  literal  and lexical  construction may  not  always be given effect to. The law would  have  to  be  interpreted having  regard to  the subject matter of the offence and the  object of the law it seeks to achieve. The  purpose  of  the  law  is  not  to  allow  the  offender  to  sneak out  of  the  meshes  of  law. Criminal Jurisprudence does not say  so.

XXX XXX XXX

25. A statute  must  be  construed as a  workable instrument. Ut res magis valeat  quam pereat is a well-known principle of  law. In Tinsukhia Electric Supply Co. Ltd.  v. State of Assam [AIR 1990 SC 123], this  Court stated the law thus :

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"118.  The  courts  strongly  lean  against  any  construction,  which  tends  to  reduce  a  statute  to  a  futility.  The  provision  of  a  statute  must be so construed as to make it  effective  and  operative,  on  the  principle "ut res magis valeat quam  pereat". It is, no doubt, true that if a  statute  is  absolutely  vague and its  language  wholly  intractable  and  absolutely meaningless, the statute  could  be  declared  void  for  vagueness.  This  is  not  in  judicial  review  by  testing  the  law  for  arbitrariness  or  unreasonableness  under Article 14; but what a court of  -

construction,  dealing  with  the  language of a statute, does in order  to ascertain from, and accord to, the  statute  the  meaning  and  purpose  which the legislature intended for it.  In  Manchester  Ship  Canal  Co.  v.  Manchester Racecourse Co. (1900) 2  Ch 352, Farwell J. said : (pp. 360- 61)

"Unless  the  words  were  so  absolutely  senseless  that  I  could  do  nothing  at  all  with  them,  I  should  be  bound  to  find some meaning and not to  declare  them  void  for  uncertainty."

In  Fawcett  Properties  Ltd.  v.  Buckingham County Council [(1960) 3 All  ER  503]  Lord  Denning  approving  the  dictum of Farwell, J. said :

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"But  when  a  Statute  has  some  meaning, even though it is obscure,  or several meanings, even though it  is little to choose between them, the  courts  have  to  say  what  meaning  the  statute  to  bear  rather  than  reject it as a nullity."

It is, therefore, the court's duty to make  what it can of the statute, knowing that  the  statutes  are  meant  to  be  operative  and not inept and that nothing short of  impossibility  should  allow  a  court  to  declare a statute unworkable. In Whitney  v. Inland Revenue Commissioners [1928  AC 37] Lord Dunedin said :

"A  statute  is  designed  to  be  workable, and the interpretation -

thereof  by  a  court  should  be  to  secure  that  object,  unless  crucial  omission  or  clear  direction  makes  that end unattainable."

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27. The Courts will  therefore reject that  construction which will  defeat  the  plain  intention of the Legislature even though  there  may  be  some  inexactitude  in  the  language used. [See Salmon v. Duncombe  (1886)  11  AC  827].  Reducing  the  legislation futility shall be avoided and in  a  case  where  the  intention  of  the  Legislature cannot be given effect to, the  Courts  would  accept  the  bolder  construction for the purpose of  bringing  about  an  effective  result.  The  Courts,  when  rule  of  purposive  construction  is  gaining  momentum,  should  be  very  

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reluctant to hold that the Parliament has  achieved nothing by the language it used  when it is tolerably plain what it seeks to  achieve. [See BBC Enterprises v. Hi-Tech  Xtravision Ltd., (1990) 2 All ER 118].”

12. Further,  in  the  case  of  Superintendent  and  

Remembrancer of Legal Affairs to Government of West Bengal v.  

Abani Maity [(1979) 4 SCC 85], this Court held as under :

“Exposition ex visceribus actus is a long  recognised rule of construction. Words in  a statute often take their meaning from  the  context  of  the  statute  as  a  whole.  They are therefore, not to be construed in  isolation. For instance, the use of the -

word “may” would normally indicate that  the provision was not mandatory. But in  the  context  of  a  particular  statute,  this  word  may  connote  a  legislative  imperative,  particularly  when  its  construction in a permissive sense would  relegate it to the unenviable position, as  it were, “of an ineffectual angel beating its  wings in a luminous void in vain”. If the  choice  is  between  two  interpretations”,  said  Viscount  Simon  L.C.  in  Nokes  v.  Doncaster  Amalgamated  Collieries,  Ltd.  [(1940) A.C. 1014] :

‘the narrower of which would fail to  achieve the manifest purpose of the  legislation  we  should  avoid  a  construction  which  would  reduce  the legislation to futility and should  rather  accept  the  bolder  

20

construction based on the view that  Parliament  would  legislate  only  for  the  purpose  of  bringing  about  an  effective result’.”

13. The relevancy of objects and reasons for enacting an  

Act  is  a  relevant  consideration for  the  court  while  applying  

various principles of interpretation of statutes.  Normally, the  

court would not go behind these objects and reasons of the  

Act.  The discussion of a Standing Committee to a Bill may not  

be a very appropriate precept for tracing the legislative intent  

but in given circumstances, it may be of some use to notice  

some discussion on the legislative intent that is reflected in  

the -

substantive  provisions  of  the  Act  itself.  The  Standing  

Committee  on  Energy,  2001,  in  its  discussion  said,  ‘the  

Committee feel that there is a need to provide safeguards to  

check the misuse of these powers by unscrupulous elements’.  

The  provisions  of  Section  126  of  the  2003  Act  are  self-

explanatory, they are intended to cover situations other than  

the  situations specifically  covered under  Section 135 of  the  

2003 Act.  This would further be a reason for this Court to  

21

adopt  an  interpretation  which  would  help  in  attaining  the  

legislative intent.  

14. By applying these principles to the provisions of this  

case requiring judicial interpretation, we find no difficulty in  

stating  that  the  provisions  of  Section  126  of  the  2003  Act  

should be read with other provisions, the regulations in force  

and they should be so interpreted as to achieve the aim of  

workability  of  the  enactment  as  a  whole  while  giving  it  a  

purposive  interpretation  in  preference  to  textual  

interpretation.

-

1(b) Distinction  between  Sections  126  and  135  of  the  2003 Act

15. 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  

22

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.  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  

23

proportional  to  the  number  of  convictions  and  is  also  

dependent  on  the  extent  of  load  abstracted.  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.   The  officer  is  also  under  

obligation to serve a notice in terms of Section 126(3) of the  

2003 Act upon any such consumer requiring him to file his  

objections, if any, against the provisional assessment before a  

final order of assessment is passed within thirty days from the  

date  of  service  of  such  order  of  provisional  assessment.  

24

Thereafter,  any  person  served  with  the  order  of  provisional  

assessment  may  accept  such  assessment  and  deposit  the  

amount with the licensee within seven days of service of such  

provisional  assessment order  upon him or prefer  an appeal  

against the resultant final order under Section 127 of the 2003  

Act.   The  order  of  assessment  under  Section  126  and  the  

period for  which such order  would be  passed has to  be  in  

terms of Sub-sections (5) and (6) of Section 126 of the 2003  

Act.  The Explanation to Section 126 is of some significance,  

which we shall deal with shortly hereinafter.  Section 126 of  

the  2003  Act  falls  under  Chapter  XII  and  relates  to  

investigation  and  enforcement  and  empowers  the  assessing  

officer to pass an order of assessment.   

-

16. Section 135 of the 2003 Act deals with an offence of  

theft  of  electricity  and the  penalty  that  can be  imposed for  

such  theft.   This  squarely  falls  within  the  dimensions  of  

Criminal Jurisprudence and  mens rea is one of the relevant  

factors for finding a case of theft.  On the contrary, Section  

126  of  the  2003  Act  does  not  speak  of  any  criminal  

25

intendment and is primarily an action and remedy available  

under  the  civil  law.   It  does not  have  features  or  elements  

which are traceable to the criminal concept of mens rea.

17. 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  intention  and  without  

authorization, like providing for a direct connection bypassing  

the  installed  meter.   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  

26

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.  

18. Section  135  of  the  2003  Act  significantly  uses  the  

words ‘whoever, dishonestly’ does any of the listed actions so  

as to abstract  or  consume electricity  would be punished in  

accordance with the provisions of the 2003 Act.  ‘Dishonesty’  

-

is a state of  mind which has to be shown to exist  before a  

person can be punished under the provisions of that Section.   

19. The  word  ‘dishonest’  in  normal  parlance  means  

‘wanting in honesty’.  A person can be said to have ‘dishonest  

intention’ if in taking the property it is his intention to cause  

27

gain, by unlawful means, of the property to which the person  

so gaining is not legally entitled or to cause loss, by wrongful  

means,  of  property  to  which the  person so losing  is  legally  

entitled.   ‘Dishonestly’  is  an  expression  which  has  been  

explained by the Courts in terms of Section 24 of the Indian  

Penal Code, 1860 as ‘whoever does anything with the intention  

of  causing  wrongful  gain to  one  person or  wrongful  loss  to  

another person is said to do that thing dishonestly’.  [The Law  

Lexicon (2nd Edn. 1997) by P. Ramanatha Aiyar]

20. This Court in the case of  Dr. S. Dutt v.  State of U.P.   

[AIR 1966 SC 523] stated that a person who does anything  

with the  intention to cause  wrongful  gain to one person or  

wrongful loss to another is said to do that dishonestly.

-

21. Collins English Dictionary explains the word ‘dishonest’  

as ‘not honest or fair; deceiving or fraudulent’.  Black’s Law  

Dictionary (Eighth Edition) explains the expression ‘dishonest  

act’  as  a  fraudulent  act,  ‘fraudulent  act’  being  a  conduct  

28

involving bad faith,  dishonesty,  a  lack of  integrity  or  moral  

turpitude.

22. All these explanations clearly show that dishonesty is  

a state of mind where a person does an act with an intent to  

deceive the other, acts fraudulently and with a deceptive mind,  

to cause wrongful loss to the other.  The act has to be of the  

type stated under Sub-sections (1)(a) to (1)(e) of Section 135 of  

the 2003 Act.  If these acts are committed and that state of  

mind,  mens  rea,  exists,  the  person  shall  be  liable  to  

punishment and payment of  penalty as contemplated under  

the provisions of the 2003 Act.  In contradistinction to this,  

the intention is not the foundation for invoking powers of the  

competent authority and passing of  an order of  assessment  

under Section 126 of the 2003 Act.

-

1(c) The ambit and scope of Section 126 with reference to  the construction of the words ‘unauthorised use’ and  ‘means’

29

23. Having  dealt  with  the  principle  of  interpretation  of  

these provisions and the distinction between Sections 126 and  

135 of the 2003 Act, we shall now discuss the ambit and scope  

of Section 126.  The provisions of Section 126 contemplate the  

following steps to be taken :

(i) An assessing officer is to conduct inspection of a place or  

premises  and  the  equipments,  gadgets,  machines,  

devices found connected or used in such place.

(ii) The  formation  of  a  conclusion  that  such  person  has  

indulged in unauthorized use of electricity.

(iii) The assessing officer to provisionally assess, to the best  

of his judgment, the electricity charges payable by such  

person.

(iv) The order of  provisional assessment to be served upon  

the person concerned in the manner prescribed, giving -

him  an  opportunity  to  file  objections,  if  any,  against  the  

provisional assessment.

30

(v) The  assessing  officer  has  to  afford  a  reasonable  

opportunity of  being heard to such person and pass a  

final order of assessment within 30 days from the date of  

service of such order of provisional assessment.

(vi) The  person,  upon  whom  the  provisional  order  of  

assessment is served, is at liberty to pay the said amount  

within seven days of the receipt of such order and where  

he files such objections, final order of assessment shall  

be  passed,  against  which  such  person  has  a  right  of  

appeal  under  Section  127  of  the  2003  Act  within  the  

prescribed period of limitation.   

Assessment and Computation

24. Wherever  the  assessing  officer  arrives  at  the  

conclusion  that  unauthorized  use  of  electricity  has  taken  

place,  the  assessment  shall  be  made  for  the  entire  period  

during which such unauthorized use of electricity has taken  

place  and if  such period cannot  be  ascertained,  it  shall  be  

limited to a -

31

period  of  12  months  immediately  preceding  the  date  of  

inspection and the assessment shall be made at the rate equal  

to twice the tariff applicable for the relevant category of service  

specified under these provisions.  This computation has to be  

taken in terms of Sections 126(5), 126(6) and 127 of the 2003  

Act.  The complete procedure is provided under these sections.  

Right from the initiation of the proceedings till preferring of an  

appeal against the final order of assessment and termination  

thereof,  as  such,  it  is  a  complete  code  in  itself.   We  have  

already indicated that  the  provisions of  Section 126 do not  

attract  the  principles  of  Criminal  Jurisprudence  including  

mens rea.  These provisions primarily relate to unauthorized  

use of electricity and the charges which would be payable in  

terms thereof.   

25. To determine the controversy in the present case, it  

will be essential to examine the implication of the expression  

‘unauthorised use of electricity’  as contained in Explanation  

(b) of Section 126 of the 2003 Act.

32

26. In  order  to  explain  these  expressions,  it  will  be  

necessary for us to refer to certain other provisions and the  

Regulations -

as well.  These expressions have to be understood and given  

meaning with reference to their background and are incapable  

of  being  fairly  understood,  if  examined  in  isolation.   It  is  

always appropriate to examine the words of a statute in their  

correct  perspective  and  with  reference  to  relevant  statutory  

provisions.

27. The expression ‘unauthorized use of electricity’ on its  

plain  reading  means  use  of  electricity  in  a  manner  not  

authorized by the licensee of the Board.  ‘Authorization’ refers  

to the permission of the licensee to use of electricity’, subject to  

the terms and conditions for such use and the law governing  

the subject.  To put it more aptly, the supply of electricity to a  

consumer is always subject to the provisions of the 2003 Act,  

State Acts, Regulations framed thereunder and the terms and  

conditions of  supply in the form of  a contract or  otherwise.  

Generally, when electricity is consumed in violation of any or  

all  of these, it would be understood as ‘unauthorized use of  

33

electricity’.  But this general view will have to be examined in  

the light of the fact that the legislature has opted to explain -

this term for the purposes of Section 126 of the 2003 Act.  The  

said provision, along with the Explanation, reads as under: -

“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: (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 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.;

34

(6) The assessment under this section shall be made at a rate  equal to twice the tariff applicable for the relevant category of  services specified in sub-section (5). Explanation : For the purposes of this section,-- (a) "assessing officer" means an officer of a State Government  or Board or licensee, as the case may be, designated as such  by the State Government; (b) "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 Authorized; or - (v) for the premises or areas other than those for which the  supply of electricity was authorised.”

28. The ‘unauthorized use of electricity’ means the usage  

of electricity by the means and for the reasons stated in sub-

clauses (i) to (v) of clause (b) of Explanation to Section 126 of  

the 2003 Act.  Some of the illustratively stated circumstances  

of  ‘unauthorised use’  in the section cannot be construed as  

exhaustive.  The ‘unauthorized use of electricity’ would mean  

what is stated under that Explanation, as well as such other  

unauthorized user, which is squarely in violation of the above-

mentioned statutory or contractual provisions.

29. The  Black’s  Law Dictionary (Eighth  Edition) defines  

‘unauthorized’  as ‘done without the authority,  made without  

35

actual,  implied  or  apparent  authority’.   ‘Unauthorized’  is  a  

concept well-recognized under different statutes, for example,  

under Section 31A of  the Delhi  Development Act,  1957 (the  

‘DDA  Act’)  the  authority  has  the  power  to  seal  the  

‘unauthorized’  development,  if  the  misuser  of  the  premises  

would  come  within  the  ambit  of  unauthorized  development.  

But if such misuse does not come within the ambit of -

‘unauthorized development’, such power is not available to the  

authority.  Simplicitor misuse, therefore, may not fall  within  

the ambit of unauthorized development under the provisions of  

the DDA Act.  In M.C. Mehta  v.  Union of India [(2006) 3 SCC  

391], this Court held that if the misuse was in violation of the  

permission,  approval  or  sanction or  in  contravention of  any  

conditions, subject to which the said permission/approval has  

been granted in terms of Section 30 of the DDA Act, then it will  

be ‘unauthorized use’.

30. We have primarily referred to this case to support the  

reasoning  that  ‘unauthorized  development’  is  one  which  is  

contrary to a master plan or zonal development plan as was  

the case under the DDA Act.  Just as the right to develop a  

36

property is controlled by the restrictions of law as well as the  

terms  and  conditions  of  the  permission  granted  for  that  

purpose,  the  use  of  electricity  is  similarly  controlled  by  the  

statutory provisions and the terms and conditions on which  

such permission is granted to use the electricity.

31. The unauthorized use of electricity in the manner as is  

undisputed on record clearly brings the respondent ‘under -

liability and in blame’ within the ambit and scope of Section  

126 of the 2003 Act.  The blame is in relation to excess load  

while the liability is to pay on a different tariff for the period  

prescribed  in  law  and  in  terms  of  an  order  of  assessment  

passed by the assessing officer by the powers vested in him  

under the provisions of Section 126 of the 2003 Act.

32. The expression ‘means’ used in the definition clause of  

Section 126 of the 2003 Act can have different connotations  

depending on the context in which such expression is used.  In  

terms of  Black’s Law Dictionary (Eighth Edition)  page 1001,  

‘mean’ is – ‘of or relating to an intermediate point between two  

points  or  extremes’  and  ‘meaning’  would  be  ‘the  sense  of  

37

anything, but esp. of words; that which is conveyed’.  The word  

ordinarily includes a mistaken but reasonable understanding  

of a communication.  ‘Means’ by itself is a restrictive term and  

when  used  with  the  word  ‘includes’,  it  is  construed  as  

exhaustive.   In  those  circumstances,  a  definition  using  the  

term ‘means’ is a statement of literal connotation of a term and  

the  courts  have  interpreted  ‘means  and  includes’  as  an  

expression defining the section exhaustively.  It is to be kept in  

-

mind that while determining whether a provision is exhaustive  

or  merely  illustrative,  this  will  have  to  depend  upon  the  

language of the Section, scheme of the Act, the object of the  

Legislature and its intent.   

33. ‘Purposive  construction’  is  certainly  a  cardinal  

principle  of  interpretation.   Equally  true  is  that  no  rule  of  

interpretation should either  be over-stated or  over-extended.  

Without  being  over-extended  or  over-stated,  this  rule  of  

interpretation can be applied to the present case.  It points to  

the conclusion that an interpretation which would attain the  

object and purpose of the Act has to be given precedence over  

38

any other interpretation which may not further the cause of  

the statute.  The development of law is particularly liberated  

both  from  literal  and  blinkered  interpretation,  though  to  a  

limited extent.   

34. The  precepts  of  interpretation  of  contractual  

documents have also undergone a wide ranged variation in the  

recent times.  The result has been subject to one important  

exception to assimilate the way in which such documents are  

interpreted by judges on the common sense principle by which  

any serious utterance would be interpreted by ordinary life.  In  

other -

words, the common sense view relating to the implication and  

impact  of  provisions  is  the  relevant  consideration  for  

interpreting  a  term of  document  so  as  to  achieve  temporal  

proximity of the end result.   

35. Another  similar  rule  is  the  rule  of  practical  

interpretation.   This test can be effectuatedly applied to the  

provisions  of  a  statute  of  the  present  kind.   It  must  be  

understood that an interpretation which upon application of  

39

the provisions at the ground reality, would frustrate the very  

law should not be accepted against the common sense view  

which will further such application.

36. Once the court decides that it has to take a purposive  

construction  as  opposed  to  textual  construction,  then  the  

legislative  purpose  sought  to  be  achieved  by  such  an  

interpretation  has  to  be  kept  in  mind.   We  have  already  

indicated that keeping in view the legislative scheme and the  

provisions of the 2003 Act, it will be appropriate to adopt the  

approach of purposive construction on the facts of this case.  

We have also indicated above that the provisions of  Section  

126 of the 2003 Act are intended to cover the cases over and -

above the cases which would be specifically covered under the  

provisions of Section 135 of the 2003 Act.   

37. In other words, the purpose sought to be achieved is to  

ensure stoppage of misuse/unauthorized use of the electricity  

as well as to ensure prevention of revenue loss.  It is in this  

background that the scope of the expression ‘means’ has to be  

construed.   If  we  hold  that  the  expression  ‘means’  is  

40

exhaustive  and  cases  of  unauthorized  use  of  electricity  are  

restricted to the ones stated under Explanation (b) of Section  

126 alone, then it shall defeat the very purpose of the 2003  

Act, inasmuch as the different cases of breach of the terms and  

conditions  of  the  contract  of  supply,  regulations  and  the  

provisions of the 2003 Act would escape the liability sought to  

be imposed upon them by the Legislature under the provisions  

of Section 126 of the 2003 Act.  Thus, it will not be appropriate  

for the courts to adopt such an approach.  The primary object  

of  the  expression  ‘means’  is  intended  to  explain  the  term  

‘unauthorized  use  of  electricity’  which,  even  from the  plain  

reading  of  the  provisions  of  the  2003 Act  or  on a  common  

sense view cannot be restricted to the examples given in the  

Explanation.  The -

Legislature has intentionally omitted to use the word ‘includes’  

and  has  only  used  the  word  ‘means’  with  an  intention  to  

explain inter alia what an unauthorized use of electricity would  

be.  It must be noticed that clause (iv) of Explanation (b) and  

sub-Section  (5)  of  Section  126  of  the  2003  Act  were  both  

amended/substituted by the same amending Act 26 of 2007,  

41

with a purpose and object of preventing unauthorised use of  

electricity  not  amounting  to  theft  of  electricity  within  the  

meaning of  Section 135 of  the 2003 Act.   This amendment,  

therefore, has to be given its due meaning which will fit into  

the scheme of the 2003 Act and would achieve its object and  

purpose.   

38. The expression ‘means’ would not always be open to  

such  a  strict  construction  that  the  terms  mentioned  in  a  

definition  clause  under  such  expression  would  have  to  be  

inevitably treated as being exhaustive.  There can be a large  

number  of  cases  and  examples  where  even  the  expression  

‘means’ can be construed liberally and treated to be inclusive  

but not completely exhaustive of the scope of the definition, of  

course,  depending  upon  the  facts  of  a  given  case  and  the  

provisions -

governing that law.  In the case of  K.V. Muthu v.  Angamuthu  

Ammal [(1997) 2 SCC 53], this Court was dealing with a case  

under the Tamil Nadu Rent Act and the expression ‘member of  

his family’ as defined under Section 2(6-A) of that Act.  Section  

2(6-A)  provides  that  ‘member  of  his  family’  in  relation  to  a  

42

landlord  means  his  spouse,  son,  daughter,  grand-child  or  

dependent parents.  If the principle of construction advanced  

by the learned counsel appearing for the respondent is to be  

accepted,  then even in that  case,  the  Court  could not  have  

expanded the expression ‘members of his family’ to include any  

other  person  than  those  specifically  mentioned  under  that  

definition.   The  definition  and  the  expression  ‘means’,  if  

construed as exhaustive would necessarily imply exclusion of  

all  other  terms except those stated in that  Section but this  

Court, while adopting the principle of purposive construction,  

came to the conclusion that even a foster son, who is obviously  

not the real son or direct descendant of a person, would be  

included.  This Court, observing that there was consensus in  

precedent that the word ‘family’  is a word of great flexibility  

and is capable of different meanings, held as under :

-

“While interpreting a definition, it has to  be borne in mind that the interpretation  placed  on  it  should  not  only  be  not  repugnant to the context, it should also  be such as would aid the achievement  of  the  purpose  which  is  sought  to  be  served by the Act.  A construction which  would defeat or was likely to defeat the  

43

purpose  of  the  Act  has  to  be  ignored  and not accepted.

Where the definition or expression, as in  the  instant  case,  is  preceded  by  the  words  “unless  the  context  otherwise  requires”, the said definition set out in  the section is  to be applied and given  effect  to  but  this  rule,  which  is  the  normal  rule  may  be  departed  from  if  there  be  something  in  the  context  to  show  that  the  definition  could  not  be  applied.”

39. Another comparable example of such interpretation by  

this Court can be traced out in the case of  Union of India v.  

Prabhakaran Vijaya Kumar & Ors. [(2008) 9 SCC 527] wherein  

it  was  dealing  with  the  provisions  of  Section  123(c)  of  the  

Railways Act, 1989 which read as under :

“123 (c)   “untoward  incident”  means--  (1) (i) the commission of a terrorist act  within the meaning of sub- section (1) of  section  (3)  of  the  Terrorist  and  Disruptive  Activities  (Prevention)  Act,  1987 ; or  

-

(ii) the making of a violent attack or  the commission of robbery or dacoity; or  

(iii) the indulging in rioting, shoot- out  or  arson,  by any person in or  on any  train  carrying  passengers,  or  in  a  waiting hall,  cloak room or reservation  

44

or booking office or on any platform or  in any other place within the precincts  of a railway station; or  

(2)  the  accidental  falling  of  any  passenger  from  a  train  carrying  passengers.”

40. As  is  obvious  from  the  bare  reading  of  the  above  

provision,  the  provision  used  the  expression  ‘untoward  

incident  means’  and  under  clause  (2)  of  that  provision  

‘accidental  falling  of  any  passenger  from  a  train  carrying  

passengers’  is  included.   If  it  was  to  be  understood  as  an  

absolute  rule  of  law  that  the  use  of  the  term  ‘means’  

unexceptionally  would  always  require  an  exhaustive  

interpretation of what is stated in or can be construed to that  

provision, then a person who was climbing on the train which  

was  carrying  passengers  and  who  meets  with  an  accident,  

would not be covered.  However, this Court, while repelling this  

contention, held that by adopting a restrictive meaning to the  

expression ‘accidental falling of a passenger from a train -

carrying  passengers’  in  Section  123(c)  of  the  Railways  Act,  

1989, this Court would be depriving a large number of railway  

passengers from receiving compensation in railway accidents.  

45

Treating the statute to be a beneficial piece of legislation, this  

Court  applied  purposive  interpretation,  while  observing  as  

under :

“No  doubt,  it  is  possible  that  two  interpretations  can  be  given  to  the  expression  “accidental  falling  of  a  passenger  from  a  train  carrying  passengers”, the first being that it only  applies when a person has actually got  inside  the  train  and  thereafter  falls  down from the train, while the second  being that it includes a situation where  a person is trying to board the train and  falls down while trying to do so.  Since  the  provision  for  compensation  in  the  Railways  Act  is  a  beneficial  piece  of  legislation,  in  our  opinion,  it  should  receive  a  liberal  and  wider  interpretation  and  not  a  narrow  and  technical  one.   Hence,  in  our  opinion  the  latter  of  the  abovementioned  two  interpretations  i.e.  the  one  which  advances the object of the statute and  serves its purpose should be preferred  vide  Kunal  Singh v.  Union  of  India  [(2003) 4 SCC 524 para 9],  B.D. Shetty  v.  Ceat Ltd. [(2002) 1 SCC 193 – para  12) and Transport Corpn. Of India v. ESI  Corpn. [(2000) 1 SCC 332]”

-

41. The above judgments clearly support the view that we  

have taken with reference to the facts and law of the present  

46

case.  It cannot be stated as an absolute proposition of law  

that the expression ‘means’ wherever occurring in a provision  

would inevitably render that provision exhaustive and limited.  

This rule of interpretation is not without exceptions as there  

could  be  statutory  provisions  whose  interpretation demands  

somewhat  liberal  construction  and  require  inclusive  

construction.   An  approach  or  an  interpretation  which  will  

destroy the very purpose and object of the enacted law has to  

be avoided.  The other expressions used by the Legislature in  

various sub-clauses of Explanation (b) of  Section 126 of the  

2003 Act are also indicative of its intent to make this provision  

wider  and  of  greater  application.   Expressions  like  ‘any  

artificial means’, ‘by a means not authorised by the licensee’  

etc. are terms which cannot be exhaustive even linguistically  

and are likely to take within their ambit what is not specifically  

stated.  For example, ‘any artificial means’ is a generic term  

and  so  the  expression  ‘means’  would  have  to  be  construed  

generally.  This Court in the case of Eureka Forbes Ltd. v. -

47

Allahabad  Bank [(2010)  6  SCC  193],  while  examining  the  

interpretation and application of the word ‘debt’, held that it  

was a generic term and, thus, of wide amplitude :

“50. In this background, let us read the language of Section  2(g) of the Recovery Act. The plain reading of the Section  suggests that legislature has used a general expression in  contra distinction to specific, restricted or limited expression.  This obviously means that, the legislature intended to give  wider meaning to the provisions. Larger area of jurisdiction  was intended to be covered under this provision so as to  ensure attainment of the legislative object, i.e. expeditious  recovery and providing provisions for taking such measures  which would prevent the wastage of securities available with  the banks and financial institutions. 51. We may notice some of the general expressions used by  the framers of law in this provision: a) any liability; b) claim as due from any person; c) during the course of any business activity undertaken  by the Bank; d) where secured or unsecured; e) and lastly legally recoverable. 52. All the above expressions used in the definition clause  clearly suggest that, - expression ‘debt’ has to be given general and wider meaning,  just to illustrate, the word ‘any liability’ as opposed to the  word ‘determined liability’ or ‘definite liability’ or ‘any person’  in contrast to ‘from the debtor’. The expression ‘any person’  shows that the framers do not wish to restrict the same in its  ambit or application. The legislature has not intended to  restrict to the relationship of a creditor or debtor alone.  General terms, therefore, have been used by the legislature to  give the provision a wider and liberal meaning. These are  generic or general terms. Therefore, it will be difficult for the  Court, even on cumulative reading of the provision, to hold  that the expression should be given a narrower or restricted  meaning. What will be more in consonance with the purpose  

48

and object of the Act is to give this expression a general  meaning on its plain language rather than apply unnecessary  emphasis or narrow the scope and interpretation of these  provisions, as they are likely to frustrate the very object of the  Act.”

42. The  expressions  ‘means’,  ‘means  and  includes’  and  

‘does not include’ are expressions of different connotation and  

significance.   When  the  Legislature  has  used  a  particular  

expression  out  of  these  three,  it  must  be  given  its  plain  

meaning while even keeping in mind that the use of other two  

expressions has not been favoured by the Legislature.  To put  

it simply, the Legislature has favoured non-use of such -

expression  as  opposed  to  other  specific  expression.   In  the  

present  case,  the  Explanation to  Section  126 has  used  the  

word ‘means’ in contradistinction to ‘does not include’ and/or  

‘means and includes’.  This would lead to one obvious result  

that even the Legislature did not intend to completely restrict  

or limit the scope of this provision.

43. Unauthorised use of electricity cannot be restricted to  

the stated clauses under the explanation but has to be given a  

wider meaning so as to cover cases of violation of terms and  

49

conditions of supply and the regulations and provisions of the  

2003  Act  governing  such  supply.   ‘Unauthorised  use  of  

electricity’  itself  is  an  expression  which  would,  on  its  plain  

reading, take within its scope all the misuse of the electricity or  

even malpractices adopted while using electricity.  It is difficult  

to  restrict  this  expression  and  limit  its  application  by  the  

categories stated in the explanation.  It is indisputable that the  

electricity supply to a consumer is restricted and controlled by  

the terms and conditions of supply, the regulations framed and  

the provisions of the 2003 Act.  The requirement of grant of  

licence itself suggests that electricity is a controlled commodity  

-

and  is  to  be  regulated  by  the  regulatory  authorities.   If  a  

person  unauthorisedly  consumes  electricity,  then  he  can  

certainly be dealt with in accordance with law and penalties  

may  be  imposed  upon  him  as  contemplated  under  the  

contractual,  regulatory  and  statutory  regime.   The  Orissa  

Electricity  Regulatory  Commission,  in  exercise  of  its  powers  

under Section 181(2)(t), (v), (w) and (x) read with Part VI of the  

2003 Act, Orissa Electricity Reforms Act, 1995 and all other  

50

powers  enabling  it  in  that  behalf,  made  the  regulations  to  

govern  distribution  and  supply  of  electricity  and  procedure  

thereof  such as  system of  billing,  modality  of  payment,  the  

powers, functions and applications of the distribution licensees  

form  for  supply  and/or  suppliers  and  the  rights  and  

obligations  of  the  consumers.   These  were  called  ‘Orissa  

Electricity Regulatory Commission Distribution (Conditions of  

Supply) Code, 2004 (hereinafter referred to as ‘Conditions of  

Supply) vide notification dated 21st May, 2004.  The Agreement  

has been placed on record.  This Agreement was undisputedly  

executed  between the  parties.   Clause  (2)  of  the  Agreement  

deals with Conditions of Supply.  It states that consumer had  

-

obtained and perused a copy of the Grid Corporation of Orissa  

Ltd.  (General  Conditions  of  Supply)  Regulations,  1995,  

understood its content and undertook to observe and abide by  

all the terms and conditions stipulated therein to the extent  

they are applicable to him.  The respondent was a consumer  

under the ‘medium industry category’.  Clause (A) of the terms  

51

and conditions applicable to medium industry category reads  

as under :

“This  tariff  rate  shall  be  applicable  to  supply  of  power  at  a  single  point  for  industrial  production  purposes  with  contract demand/connected load of 22 KV  and above up to but excluding 110 KVA  where  power  is  generally  utilized  as  a  motive force.”

44. Minimum  energy  charges  are  to  be  levied  with  

reference to ‘contract demand’ at the rate prescribed under the  

terms and conditions.  These clauses of the Agreement clearly  

show  that  the  charges  for  consumption  of  electricity  are  

directly  relatable  to the  sanctioned/connected load and also  

the load consumed at a given point of time if it is in excess of  

the  sanctioned/connected  load.   The  respondent  could  

consume electricity up to 110 KVA but if the connected load  

exceeded -

that higher limit,  the category of  the respondent itself could  

stand  changed  from  ‘medium  industry’  to  ‘large  industry’  

which will be governed by a higher tariff.

52

45. Chapter VII of the Conditions of Supply classifies the  

consumers into various categories and heads.  The electricity  

could  be  provided  for  a  domestic,  LT  Industrial,  LT/HT  

Industrial,  Large  Industry,  Heavy  Industries  and  Power  

Intensive  Industries,  etc.   In  terms  of  Regulation  80,  the  

industry  would  fall  under  LT/HT  category,  if  it  relates  to  

supply for industrial production with a contract demand of 22  

KVA and above but below 110 KVA.  However, it will become a  

‘large industry’ under Regulation 80(10) if it relates to supply  

of power to an industry with a contract demand of 110 KVA  

and above but below 25,000 KVA.  Once the category stands  

changed because of excessive consumption of electricity, the  

tariff and other conditions would stand automatically changed.  

The  licensee  has  a  right  to  reclassify  the  consumer  under  

Regulation 82 if it is found that a consumer has been classified  

in a particular category erroneously or the purpose of supply  

as mentioned in the agreement has changed or the -

consumption of power has exceeded the limit of that category  

etc.   The  Conditions  of  Supply  even  places  a  specific  

prohibition  on  consumption  of  excessive  electricity  by  a  

53

consumer.  Regulation 106 of the Conditions of Supply reads  

as under :

“No consumer shall make use of power in  excess of  the approved contract  demand  or use power for a purpose other than the  one  for  which  agreement  has  been  executed  or  shall  dishonestly  abstract  power from the licensee’s system.”

46. On the cumulative reading of the terms and conditions  

of supply, the contract executed between the parties and the  

provisions of the 2003 Act, we have no hesitation in holding  

that  consumption of  electricity  in  excess of  the  sanctioned/  

connected load shall be an ‘unauthorised use’ of electricity in  

terms of Section 126 of the 2003 Act.  This, we also say for the  

reason that overdrawal of electricity amounts to breach of the  

terms  and  conditions  of  the  contract  and  the  statutory  

conditions,  besides such overdrawal  being prejudicial  to  the  

public at large, as it is likely to throw out of gear the entire  

supply system, undermining its efficiency, efficacy and even -

increasing  voltage  fluctuations.  In  somewhat  similar  

circumstances,  where  the  consumer  had  been  found  to  be  

drawing electricity in excess of contracted load and the general  

54

conditions  of  supply  of  electricity  energy  by  the  Board  and  

clause 31(f) of the same empowered the Board to disconnect  

supply  and  even  levy  higher  charges  as  per  the  tariff  

applicable,  this  Court  held  that  such  higher  tariff  charges  

could be recovered.  While noticing the prejudice caused, the  

Court  in  the  case  Bhilai  Rerollers  &  Ors. v.  M.P.  Electricity  

Board & Ors. [(2003) 7 SCC 185], held as under :

“21.  The  respondent-Board,  therefore,  is  entitled  to  raise  the  demand  under  challenge  since  such  right  has  been  specifically provided for and is part of the  conditions  for  supply  and  particularly  when such drawal of extra load in excess  of the contracted load is bound to throw  out  of  gear  the  entire  supply  system  undermining  its  efficiency,  efficacy  not  only causing stress on the installations of  the  Board  but  considerably  affect  other  consumers  who  will  experience  voltage  fluctuations.  Consequently,  we  see  no  merit in the challenge made on behalf of  the appellants. The appeals, therefore, fail  and  shall  stand  dismissed  but  with  no  costs.”

-

47. Similar view was taken by this Court in the case of  

Orissa State  Electricity Board & Anr. v.  IPI Steel  Ltd.  & Ors.  

[(1995) 4 SCC 328].

55

48. It will also be useful to notice that certain malpractices  

adopted by the consumer for consuming electricity in excess of  

the contracted load could squarely fall within the ambit and  

scope  of  Section  126  of  the  2003  Act  as  it  is  intended  to  

provide  safeguards  against  pilferage  of  energy  and  

malpractices  by  the  consumer.   The  Regulations  framed  in  

exercise  of  power  of  subordinate  legislation  or  terms  and  

conditions imposed in furtherance of statutory provisions have  

been held to be valid and enforceable.  They do not offend the  

provisions of the 2003 Act.  In fact, the power to impose penal  

charges or  disconnect  electricity  has  been held not  violative  

even of Article 14 of the Constitution of India. The expression  

‘malpractices’ does not find mention in the provisions under  

the 2003 Act but as a term coined by judicial pronouncements.  

Thus, the expression ‘malpractices’ has to be construed in its  

proper perspective and normally may not amount to theft of  

electricity as contemplated under Section 135 of the 2003 Act.  

Such -

acts/malpractices  would  fall  within  the  mischief  of  

unauthorized use of electricity as stipulated under Section 126  

56

of the 2003 Act.  Cases of pilferage of electricity by adopting  

malpractices which patently may not be a theft would be the  

cases that would fall  within the jurisdiction of the Board in  

furtherance to the terms and conditions of supply.  Reference  

in this regard can be made to the judgment of this Court in the  

case  of  Hyderabad  Vanaspathi  Lts. v.  A.P.  State  Electricity   

Board & Anr. [(1998) 4 SCC 471].

49. There is  another  angle  from which the present case  

can be examined and obviously without prejudice to the other  

contentions raised.  It is a case where, upon inspection, the  

officers of the appellant found that respondent was consuming  

142 KVA of electricity which was in excess of the sanctioned  

load.  To the inspection report, the respondent had not filed  

any objection before the competent authority as contemplated  

under  Section  126(3)  and  had  approached  the  High  Court.  

Limited  for  the  purposes  of  these  proceedings,  excess  

consumption is  not  really  in dispute.   As stated above,  the  

contentions raised by the respondent were to challenge the -

very jurisdiction of the concerned authorities.  Consumption in  

excess  of  sanctioned  load  is  violative  of  the  terms  and  

57

conditions of the agreement as well as of the statutory benefits.  

Under  Explanation  (b)(iv),  ‘unauthorised  use  of  electricity’  

means if the electricity was used for a purpose other than for  

which the usage of electricity was authorised.  Explanation (b)

(iv), thus, would also cover the cases where electricity is being  

consumed in excess of  sanctioned load, particularly when it  

amounts to change of category and tariff.  As is clear from the  

agreement  deed,  the  electric  connection  was  given  to  the  

respondent  on  a  contractual  stipulation  that  he  would  

consume the electricity in excess of 22 KVA but not more than  

110 KVA.  The use of the negative language in the condition  

itself  declares  the  intent  of  the  parties  that  there  was  an  

implied prohibition in consuming electricity in excess of  the  

maximum load as it would per se be also prejudiced.  Not only  

this,  the language of  Regulations 82 and 106 also prescribe  

that the consumer is not expected to make use of  power in  

excess  of  approved  contract  demand  otherwise  it  would  be  

change of user falling within the ambit of ‘unauthorised use of  

-

58

electricity’.  Again, there is no occasion for this Court to give a  

restricted  meaning  to  the  language  of  Explanation  (b)(iv)  of  

Section 126.  According to the learned counsel appearing for  

the respondent, it is only the actual change in purpose of use  

of electricity and not change of category that would attract the  

provisions of Section 126 of the 2003 Act.  The contention is  

that where the electricity was provided for a domestic purpose  

and  is  used  for  industrial  purpose  or  commercial  purpose,  

then alone it will amount to change of user or purpose.  The  

cases  of  excess  load  would  not  fall  in  this  category.   This  

argument is again without any substance and, in fact, needs to  

be noticed only to be rejected.  We have already discussed in  

some detail above that the expressions of the Explanation to  

Section 126 are to be given a wider and amplified meaning so  

as  to  ensure  the  implementation  of  the  provisions  in  

contradistinction to defeating the very object of the 2003 Act.  

Without being innovative and while predicating, we only state  

the principles which have been authoritatively pronounced by  

this  Court  in  different  cases.   In the  case  of  Association  of   

59

Industrial Electricity Users v. State of A.P. & Ors. [(2002) 3 SCC  

-

711],  this  Court,  while  expressing  that  fixation  of  tariff  in  

electricity or allied matters can hardly be a subject matter of  

judicial review.  The courts would not venture to examine the  

tariff on merit and restrict its power of judicial review only to  

procedural matters that too where it is ex facie arbitrary.  The  

Court rejecting the contention raised before it that Section 126  

of  the  Andhra  Pradesh  Electricity  Reforms  Act  does  not  

envisage classification of consumers according to the purpose  

for which the electricity is used and held that the supply of  

electricity permits differentiation according to the consumer’s  

load factor or power factor, total consumption of energy during  

the specified period, the time at which the supply is required  

and the need for cross-subsidisation or such tariff as is just  

and reasonable and such as to promote economic efficiency in  

the supply and consumption of electricity.  The tariff may also  

be such as to satisfy all other relevant provisions of the 2003  

Act and the relevant conditions of the Agreement.  Thus, there  

is  a  direct  relation  between  the  quantum  of  electricity  

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demanded, supplied and tariff  rate.  The purpose, therefore,  

would include by necessary implication, the category under -

which the electricity supply is being provided by the licensee to  

the consumer.  Still, in another case of Punjab State Electricity   

Board v.  Vishwa Caliber  Builders Private  Ltd.  [(2010) 4 SCC  

539],  this  Court  was primarily  concerned with  the  question  

whether the ombudsman would have the jurisdiction to issue  

directions  for  regularization  of  unauthorized  electricity.  

Answering  the  same  in  the  negative  and  dealing  with  the  

question of excess load, this Court held as under :

“The  fact  that  the  appellant  could  not  release connection with a load of 2548 KW  on  account  of  non-availability  of  transformer  necessary  for  transfer  of  8  MVA load  from 66  KV sub  station,  G.T.  Road,  Ludhiana  had  no  bearing  on  the  issue of consumption of electricity by the  respondent  beyond  the  sanctioned  load.  Undisputedly,  in  terms  of  the  request  made  by  the  respondent,  the  Chief  Engineer  had  sanctioned  connection  on  the  existing  system with  a  load  of  1500  KW, but the respondent used excess load  to  the  tune  of  481.637  KW  and  this  amounted to unauthorized use of electrical  energy.”

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50. The consistent view of this Court would support the  

proposition that the cases of excess load of consumption would  

be squarely covered under Explanation (b)(iv) of Section 126 of  

-

the  2003  Act.  Once  this  factor  is  established,  then  the  

assessing officer has to pass the final order of assessment in  

terms of Sections 126(3) to 126(6) of the 2003 Act.  

Discussion on Question No.2 and 3

51. Under  the  procedure  prescribed,  the  person  (the  

consumer) has to be served with the notice inviting him to file  

objections,  if  any,  within  the  stipulated  time  in  terms  of  

Section 126(3) and the assessing officer is required to pass a  

final  order  within 30 days  from the  date  of  service  of  such  

order of provisional assessment.  If the consumer does not pay  

the provisional assessment amount, as required under Section  

126(4)  and  file  objections  under  Section  126(3),  then  after  

affording  opportunity  to  the  consumer,  the  assessing  officer  

shall  assess  the  amount  and  pass  an  order  of  final  

assessment,  as  stated  in  Section  126(5).   Section  126(6)  

contemplates that the assessment under the Section shall be  

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made  at  a  rate  equal  to  twice  the  tariff  applicable  for  the  

relevant category of services specified in Sub-section (5).  The  

reference to the category in Section 126(6) fully substantiate  

the view that we have taken that change of category by -

consumption  of  excess  load  will  automatically  bring  the  

defaulter within the mischief of Explanation to Section 126(6).  

Once the order of assessment is finally passed and is served  

upon the consumer, he is  expected to pay the said charges  

unless,  being  aggrieved  from  such  an  order,  he  prefers  an  

appeal under Section 127 of the 2003 Act.  The appeal under  

Section 127 would lie only against the final order passed under  

Section 126 that too within 30 days of  the said order.   The  

appeal shall be filed, maintained and dealt with in accordance  

with the procedure specified in Section 127 of the 2003 Act.  A  

bare reading of the provisions of Section 127 shows that it is  

the final order made under Section 126 which is appealable  

under Section 127 of the 2003 Act.  In other words, issuance of  

a notice or a provisional order of assessment as may be made  

by  the  assessing  officer  in  terms of  sub-section  (1)  to  sub-

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section (3) of Section 126 of the 2003 Act would not be the  

order against which an appeal would lie.

52. It  may  be  noticed  that  admittedly  the  present  

respondent  had  not  preferred  any  appeal  against  the  

provisional order of assessment dated 25th July, 2009 and, in  

fact, had preferred a -

writ  petition against the very issuance of  a notice  issued in  

terms of Sub-sections (2) and (3) of Section 126 of the 2003  

Act.  This brings us to the question as to what is the scope of  

jurisdiction under Article 226 of the Constitution of India in  

face of the provisions of Section 127 of the 2003 Act.

53. It is a settled canon of law that the High Court would  

not  normally  interfere  in  exercise  of  its  jurisdiction  under  

Article  226  of  the  Constitution  of  India  where  statutory  

alternative remedy is available.  It is equally settled that this  

canon of law is not free of exceptions.  The courts, including  

this Court, have taken the view that the statutory remedy, if  

provided  under  a  specific  law,  would  impliedly  oust  the  

jurisdiction of the Civil Courts.  The High Court in exercise of  

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its  extraordinary  jurisdiction  under  Article  226  of  the  

Constitution  of  India  can  entertain  writ  or  appropriate  

proceedings despite availability of an alternative remedy.  This  

jurisdiction,  the  High  Court  would  exercise  with  some  

circumspection  in  exceptional  cases,  particularly,  where  the  

cases involve  a pure  question of  law or  vires  of  an Act  are  

challenged.  This class of cases we are mentioning by way of  

illustration and should not -

be understood to be an exhaustive exposition of law which, in  

our  opinion,  is  neither  practical  nor  possible  to  state  with  

precision.   The  availability  of  alternative  statutory  or  other  

remedy  by  itself  may  not  operate  as  an  absolute  bar  for  

exercise of jurisdiction by the Courts.  It will normally depend  

upon the facts and circumstances of a given case.  The further  

question  that  would  inevitably  come  up  for  consideration  

before the Court even in such cases would be as to what extent  

the jurisdiction has to be exercised.

54. Should the Courts determine on merits of the case or  

should  it  preferably  answer  the  preliminary  issue  or  

jurisdictional issue arising in the facts of the case and remit  

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the  matter  for  consideration  on  merits  by  the  competent  

authority?   Again,  it  is  somewhat  difficult  to  state  with  

absolute  clarity  any  principle  governing  such  exercise  of  

jurisdiction.  It always will depend upon the facts of a given  

case.   We  are  of  the  considered  view  that  interest  of  

administration of justice shall be better subserved if the cases  

of  the  present  kind  are  heard  by  the  courts  only  where  it  

involves primary questions of jurisdiction or the matters which  

-

goes to the very root of jurisdiction and where the authorities  

have  acted  beyond  the  provisions  of  the  Act.   However,  it  

should  only  be  for  the  specialized Tribunal  or  the  appellate  

authorities  to  examine  the  merits  of  assessment  or  even  

factual matrix of the case.  It is argued and to some extent  

correctly that the High Court should not decline to exercise its  

jurisdiction  merely  for  the  reason  that  there  is  a  statutory  

alternative remedy available even when the case falls  in the  

above-stated class of cases.  It is a settled principle that the  

Courts/Tribunal will not exercise jurisdiction in futility.  The  

law will not itself attempt to do an act which would be vain, lex  

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nil frustra facit, nor to enforce one which would be frivolous—

lex neminem cogit ad vana seu inutilia—the law will not force  

any one to do a thing vain and fruitless.  In other words,  if  

exercise of jurisdiction by the Tribunal  ex facie appears to be  

an  exercise  of  jurisdiction  in  futility  for  any  of  the  stated  

reasons,  then  it  will  be  permissible  for  the  High  Court  to  

interfere in exercise of its jurisdiction.  This issue is no longer  

res integra and has been settled by a catena of judgments of  

this Court, which we find entirely unnecessary to refer to in -

detail.  Suffices it to make a reference to the judgment of this  

Court in the case of Whirlpool Corporation v. Registrar of Trade   

Marks,  Mumbai   [(1998)  8  SCC  1]  where  this  Court  was  

concerned with the powers of the Registrar of Trade Marks and  

the  Tribunal  under  the  Trade  and  Merchandise  Marks  Act,  

1958 and exercise of jurisdiction by the High Court in face of  

availability  of  a  remedy  under  the  Act.   This  Court  while  

referring to various judgments of this Court and specifying the  

cases where the alternative remedy would not bar the exercise  

of jurisdiction by the Court, held as under: -

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“14. The power to issue prerogative writs  under  Article  226  of  the  Constitution  is  plenary in nature and is not limited by any  other  provision  of  the  Constitution  This  power can be exercised by the High Court  not only for issuing writs in the nature of  Habeas  Corpus,  Mandamus,  prohibition,  Qua  Warranto  and  Certiorari  for  the  enforcement  of  any  of  the  Fundamental  Rights  contained  in  Part  III  of  the  Constitution  but  also  for  “any  other  purpose”.

15. Under Article  226 of the Constitution,  the High Court, having regard to the facts  of the case, has a discretion to entertain or  not  to  entertain  a  writ  petition.  But  the  High Court has imposed upon itself certain  restrictions  one  of  which  is  that  if  an  effective and efficacious remedy is - available,  the  High  Court  would  not  normally exercise its jurisdiction. But the  alternative  remedy  has  been  consistently  held by this Court not to operate as a bar  in  at  least  three  contingencies,  namely,  where the writ petition has been filed for  the enforcement of any of the Fundamental  Rights or where there has been a violation  of the principle of natural justice or where  the  order  or  proceedings  are  wholly  without jurisdiction or the vires of an Act  is challenged. There is a plethora of case  law  on  this  point  but  to  cut  down  this  circle of  forensic whirlpool  we would rely  on some old decisions of the evolutionary  era of  the constitutional  law as they still  hold the field.

XXX XXX XXX

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21. That being so, the High Court was not  justified in dismissing the writ petition at  the  initial  stage  without  examining  the  contention  that  the  show  cause  notice  issued to the appellant was wholly without  jurisdiction and that the Registrar, in the  circumstances  of  the  case,  was  not  justified in acting as the ‘Tribunal’.”

55. Even in the case of Union of India v. State of Haryana  

[(2000) 10 SCC 482], this Court took the view that the question  

raised  was  a  legal  one  which  required  determination  as  to  

whether provision of telephone connections and instruments  

amounted to sale and why the Union of India should not be  

exempted from payment of sales tax under the respective -

statutes.   Holding  that  the  question  was  fundamental  in  

character  and  need  not  even  be  put  through  the  mill  of  

statutory appeals in hierarchy, this Court remitted the matter  

to the High Court for  determination of  the questions of  law  

involved in that case.

56. Applying these principles  to the facts of  the present  

case,  it  is  obvious  that  no  statutory  appeal  lay  against  a  

provisional  order of  assessment and the  respondents herein  

were required to file objections as contemplated under Section  

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126 (3) of  the 2003 Act.   It  was only when a final  order of  

assessment was passed that the respondents could prefer a  

statutory appeal which admittedly was not done in the case in  

hand.   

57. In the present case, the High Court did not fall in error  

of  jurisdiction in entertaining  the  writ  petition but  certainly  

failed to finally exercise the jurisdiction within the prescribed  

limitations of law for exercise of such jurisdiction.  Keeping in  

view  the  functions  and  expertise  of  the  specialized  body  

constituted under  the  Act  including  the  assessing  officer,  it  

would have  been proper  exercise  of  jurisdiction,  if  the  High  

Court, upon entertaining and deciding the writ petition on a -

jurisdictional  issue, would have remanded the matter to the  

competent  authority  for  its  adjudication  on  merits  and  in  

accordance with law.  In the facts of the present case, the High  

Court  should have answered the question of  law relating to  

lack  of  jurisdiction  and  exercise  of  jurisdiction  in  futility  

without  travelling  into  and  determining  the  validity  of  the  

demand  which  squarely  fell  within  the  domain  of  the  

specialized authority.  The High Court should have remanded  

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the  case  to  the  assessing  officer  with  a  direction  to  the  

respondent to file its objections including non-applicability of  

the tariff before the assessing authority and for determination  

in accordance with law.   

58. Having  dealt  with  and answered  determinatively  the  

questions framed in the judgment, we consider it necessary to  

precisely record the conclusions of our judgment which are as  

follows:-

1. Wherever the consumer commits the breach of the terms  

of the Agreement, Regulations and the provisions of the  

Act by consuming electricity in excess of the sanctioned  

and connected load, such consumer would be ‘in blame -

2. and under liability’ within the ambit and scope of Section  

126 of the 2003 Act.

3. The expression ‘unauthorized use of electricity means’ as  

appearing in Section 126 of the 2003 Act is an expression  

of wider connotation and has to be construed purposively  

in contrast to contextual interpretation while keeping in  

mind the object and purpose of  the Act.   The cases of  

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excess load consumption than the connected load  inter  

alia would fall under Explanation (b)(iv) to Section 126 of  

the 2003 Act, besides it being in violation of Regulations  

82  and  106  of  the  Regulations  and  terms  of  the  

Agreement.

4. In view of the language of Section 127 of the 2003 Act,  

only  a  final  order  of  assessment  passed under  Section  

126(3) is an order appealable under Section 127 and a  

notice-cum-provisional  assessment  made  under  Section  

126(2) is not appealable.

5. Thus, the High Court should normally decline to interfere  

in a final order of assessment passed by the assessing -

6. officer  in  terms  of  Section  126(3)  of  the  2003  Act  in  

exercise  of  its  jurisdiction  under  Article  226  of  the  

Constitution of India.

7. The High Court did not commit any error of jurisdiction  

in entertaining the writ petition against the order raising  

a  jurisdictional  challenge  to  the  notice/provisional  

assessment order dated 25th July,  2009.  However,  the  

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High  Court  transgressed  its  jurisdictional  limitations  

while travelling into the exclusive domain of the Assessing  

Officer relating to passing of an order of assessment and  

determining factual controversy of the case.

8. The High Court having dealt with the jurisdictional issue,  

the  appropriate  course  of  action  would  have  been  to  

remand  the  matter  to  the  Assessing  Authority  by  

directing the consumer to file  his objections, if  any, as  

contemplated  under  Section  126(3)  and  require  the  

Authority  to  pass  a  final  order  of  assessment  as  

contemplated  under  Section  126(5)  of  the  2003  Act  in  

accordance with law.

-

59. For  the  reasons afore-recorded,  the  judgment  of  the  

High Court  is  set  aside  and the  matter  is  remanded to the  

Assessing  Officer  to  pass  a  final  order  of  assessment  

expeditiously,  after  providing  opportunity  to  the  respondent  

herein to file objections, if any, to the provisional assessment  

order, as contemplated under Section 126(3) of the 2003 Act.  

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60. The appeal is allowed in the above terms, while leaving  

the parties to bear their own costs.

…..............................CJI.                                [S.H. Kapadia]

…..................................J.  [K.S. Radhakrishnan]

…..................................J.             [Swatanter Kumar]

New Delhi; October 20, 2011

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