JUDGMENT Hon’ble Sudhir Agarwal, J.—Pleadings are complete. As requested and agreed by learned Counsel for the parties, the matter has been heard finally at the admission stage under the Rules of the Court. Further, in all these petitions, common questions of law and facts are involved, therefore, they have been heard together and are being decided by this common judgment. Besides oral submissions, the parties have also filed written arguments. 2. Aggrieved by the assessment orders under Section 126 of the Electricity Act, 2003 (hereinafter referred to as the “Act, 2003”) and demand notices under Section 3 of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958 (hereinafter referred to as the “1958 Act”), these petitions (except Writ Petition Nos. 22263 of 2008, 22365 of 2008, 22678 of 2008, 21986 of 2008, 22367 of 2008 and 18542 of 2008) have been filed seeking a writ of certiorari quashing the aforesaid orders/notices. A writ of mandamus has also been sought commanding respondents not to realise any amount pursuant to the impugned orders. Further notification dated 27.6.2006 issued by the State Government notifying ‘assessing officer’ under Section 126 of the Act, 2003 has also been challenged on the ground that it is ultra vires and illegal. In Writ Petition Nos. 22263 of 2008, 22365 of 2008 and 22678 of 2008, only provisional assessment notice issued by the Executive Engineer concerned as well as the Government notification dated 27.6.2006 have been challenged. In Writ Petition Nos. 21986 of 2008 and 22367 of 2008, the demand notice dated 29.3.2008 under Section 3 of 1958 Act as well as the notification dated 27.6.2006 are under challenge. 3. For the purpose of brevity the facts have been taken from the leading Writ Petition No. 21073 of 2008 (Ashok Kumar and others v. State of U.P. and others). 4. The petitioner is running an Oil Expeller at his premises situated at Kheragarh, District Agra for which he obtained an electric connection with the contracted load of 21 Horse Power. The electricity is being distributed in District Agra by respondent No. 2 namely, Dakshinanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the “DVVNL”). It is said that on 22.9.2007 a new meter was installed at the petitioner’s premises. The electricity is being distributed in District Agra by respondent No. 2 namely, Dakshinanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the “DVVNL”). It is said that on 22.9.2007 a new meter was installed at the petitioner’s premises. While taking away old meter, it was mentioned in the meter sealing certificate dated 22.9.2007 (Annexure-1 to the writ petition) that the old meter shall be tested in the laboratory of respondent No. 2 on 4.10.2007 in the presence of the consumer or his representative. The petitioner submits that on 4.10.2007, in the test laboratory, old meter was checked and nothing wrong was found therein for the purpose of revenue assessment as is evident from page 52 of the paper book which is a test report duly signed by the Assistant Engineer (Meters), Electricity Test Laboratory, Electricity Test Division, Agra. However, on 18.3.2008 the respondent No. 3, i.e., Executive Engineer, Electricity Distribution Division-I, DVVNL, Agra issued a provisional assessment notice stating that on 15.1.2008 during an inspection the petitioner was found committing certain irregularities/theft of energy on account whereof an assessment of Rs. 3,83,622/- was imposed. The petitioner was given seven days time to submit his objection. Copy of the said notice dated 18.3.2008 is on record as Annexure-1-A to the writ petition. Thereafter on 29.3.2008 a demand notice under Section 3 of 1958 Act was issued for recovering Rs. 3,83,644/- which included the amount of provisional assessment as mentioned in the notice dated 18.3.2008 as well as the process fee of Rs. 22/- being cost of notice under Section 3 of 1958 Act. It is this act of the respondents which has compelled the petitioner to approach this Court under Section 226 of the Constitution of India. 5. In all other matters the assessment orders and demand notices are similar except of amount and in some cases date of inspection is different which is given in the form of a chart as under : W.P. No. Name of Provisional Assessment Demand Amount Basis of Petitioner Assessment amount notice Asess- Notice ment 1 2 3 4 5 6 7 21073/08 Ashok Kumar 18.03.08 3,83,622/- 29.03.08 3,83,644/- MRI/ and others Check report dt. 15.01.08 21984/08 Atul Kumar 18.03.08 1,95,334/- 29.03.08 1,95,356/- MRI/Check Garg report dt. 15.01.08 21985/08 Om Prakash 18.03.08 2,05,348/- 29.03.08 2,05,370/- MRI/ Check report dt. 15.01.08 21986/08 Pramod — — 29.03.08 4,01,486/- MRI/ Kumar Check report dt. 15.01.08 21984/08 Atul Kumar 18.03.08 1,95,334/- 29.03.08 1,95,356/- MRI/Check Garg report dt. 15.01.08 21985/08 Om Prakash 18.03.08 2,05,348/- 29.03.08 2,05,370/- MRI/ Check report dt. 15.01.08 21986/08 Pramod — — 29.03.08 4,01,486/- MRI/ Kumar Check report dt. 15.01.08 21988/08 Sanjay 18.03.08 1,85,011/- 29.03.08 1,85,033/- MRI/ Kumar Check report dt. 15.01.08 21989/08 Rajesh 18.03.08 3,86,202/- 29.03.08 3,86,224/- MRI/ Kumar Check Garg report dt. 15.01.08 22263/08 Bhagwan 18.03.08 2,44,217/- — — MRI/ Das Check report dt. 15.01.08 22674/08 Neeraj 19.03.08 1,86,230/- 29.03.08 1,86,252/- MRI/ Sharma Check report dt. 15.01.08 22262/08 Bhagwan 18.03.08 2,13,083/- 29.03.08 2,13,105/- MRI/ Garg Check report dt. 16.01.08 22365/08 Mukesh 18.03.08 1,88,643/- — — MRI/ Kumar Check report dt. 16.01.08 22368/08 Ram Gopal 19.03.08 2,07,669/- 29.03.08 2,07,681/- MRI/ Check report dt. 16.01.08 22369/08 Manish 18.03.08 2,09,863/- 29.03.08 2,09,885/- MRI/ Kumar Check report dt. 16.01.08 22370/08 Satya 18.03.08 1,93,632/- 29.03.08 1,93,654/- MRI/ Prakash Check Sharma report dt. 16.01.08 22678/08 Kapoor 18.03.08 2,07,015/- — — MRI/ Chandra Check report dt. 16.01.08 21987/08 Giriraj 25.03.08 2,01,501/- 29.03.08 2,01,522 MRI/ Kishore Check report dt. 17.01.08 22260/08 Trilok 18.03.08 3,93,975/- 29.03.08 3,93,997/- MRI/ Chand Check report dt. 17.01.08 22367/08 Saheb Singh — — 29.03.08 2,37,582/- MRI/ Check report dt. 17.01.08 22371/08 Rambir Giri 18.03.08 2,06,771/- 29.03.08 2,06,793/- MRI/ Check report dt. 17.01.08 22373/08 Mukesh 18.03.08 2,22,858/- 29.03.08 2,22,880/- MRI/ Check report dt. 17.01.08 6. In Writ Petition No. 18542 of 2008 the facts are slightly different. A Provisional assessment notice pursuant to MRI report was issued on 30.5.2007 whereafter a demand notice under Section 3 of 1958 Act was issued on 1.6.2007. The petitioner filed his objection on 18.6.2007 which was not decided by the assessing officer, whereafter the petitioner approached this Court in Writ Petition No. 44239 of 2007 which was disposed of on 17.9.2007 directing the assessing officer to pass final order which has been passed by the assessing officer on 8.3.2008 making assessment of Rs. 28,71,444/- against the petitioner. 7. The petitioners assailing the impugned orders/notices briefly submitted as under : (1) The respondent No. 2 is not a ‘licence’ either under U.P. Electricity Reforms Act, 1999 (hereinafter referred to as the “1999 Act”) or the Act, 2003 and, therefore, the respondent No. 3 neither can be nominated or notified to be an ‘assessing officer’ under Section 126 of Act, 2003 nor the State Government’s notification dated 27.6.2006 can confer such power upon him. The notification dated 27.6.2006 is thus illegal and ultra vires of the Act, 2003 rendering various assessment orders issued by respondent no. 3 also without jurisdiction. (2) Though the impugned provisional assessment notice apparently pretend to give opportunity to the petitioners of showing cause against the proposed assessments but in fact there is flagrant violation of the procedure prescribed under Clause 6.8 of the U.P. Electricity Supply Code, 2005 (hereinafter referred to as Code, 2005) and in effect virtually no opportunity has been given to the petitioners. The entire proceedings are in flagrant violation of principles of natural justice. (3) Neither DVVNL has been notified to be a “Government Electrical Undertaking” under Section 2(c) of 1958 Act nor the respondent No. 3 has been notified as ‘prescribed authority’ under Section 2(b) of 1958 Act, therefore, the demand notice issued under Section 3 of 1958 Act is wholly without jurisdiction. (4) The very allegation of theft of electrical energy levelled against the petitioners is not substantiated by any material whatsoever and, therefore, unless the relevant material is disclosed to the petitioners, and charge of theft is proved they are not in a position to submit any effective defence to the allegations made against the petitioners. The entire action of the respondents is based on conjectures and surmises and is in flagrant violation of the procedure prescribed in law. 8. The respondents have filed counter affidavit raising a preliminary objection that against the assessment made under Section 126 of the Act, 2003 the petitioners have an alternative remedy of appeal under Section 127 of the Act, 2003 and since such alternative remedy of appeal has not been availed of by the petitioners, therefore, the writ petition is liable to be dismissed on the ground of alternative remedy. On merits, it is stated that the enforcement squad of respondent No. 2 inspected premises of the petitioners and on the basis of MRI of meter it was found that the petitioners were indulged in irregularities/unauthorised user of electricity. Consequently, provisional assessment notices were issued to the petitioners but they did not file any objections thereagainst, hence, demand notices were issued under Section 3 of 1958 Act. Consequently, provisional assessment notices were issued to the petitioners but they did not file any objections thereagainst, hence, demand notices were issued under Section 3 of 1958 Act. Answering the question of validity of the State Government’s notification dated 27.6.2006 with respect to ‘assessing officer’ issued under Section 126 of Act, 2003, it is said that such a challenge after more than 2 years suffers from undue laches and, therefore, to that extent writ petition is liable to be dismissed on the ground of delay and laches. Justifying assessment it is averred that as per MRI report dated 15.1.2008 lesser consumption was recorded in the display unit because of the deliberate action of the petitioners and, therefore, the revenue assessment was made under Section 126 of the Act, 2003. Due opportunity was given to the petitioners for submitting their reply to the provisional assessments which they failed and, therefore, the demand notices have been issued. It is further said that U.P. Power Corporation Limited (in short “UPPCL”) is a ‘licensee’ and respondent No. 2, i.e., ‘Agra Discom’ is a subsidiary company of UPPCL. The officers of UPPCL transferred to Agra Discom are continuing to be the officers of UPPCL. Since they, i.e. UPPCL and its executive engineers, have already been notified as ‘Government Electrical Undertaking’ and ‘prescribed authority’ under Section 2(c) and 2(b) of 1958 Act vide Government notification dated 9.1.2001, therefore, the demand notices issued under Section 3 of 1958 Act are valid and need no interference. It is lastly submitted that the transfer scheme with respect to absorption of employees/officers of UPPCL has been deferred up to 11.10.2008 vide notification dated 11.4.2008 and, therefore, presently, in law, it is the UPPCL and its officers who are actually functioning through Agra Discom which is a Government company 100% owned by UPPCL or its nominees and, therefore, there is no requirement of any separate notification with respect to ‘Agra Discom’ i.e. DVVNL or its employees under 1958 Act. 9. We have heard learned Counsel for the parties and perused the record. 10. Dealing first with the preliminary objection regarding availability of alternative remedy we are of the view that the issues which have been raised in all these petitions are purely legal and involves jurisdictional issues, therefore, these are not the cases where the writ petitions can be thrown on the ground of non exhaustion of alternative remedy. 10. Dealing first with the preliminary objection regarding availability of alternative remedy we are of the view that the issues which have been raised in all these petitions are purely legal and involves jurisdictional issues, therefore, these are not the cases where the writ petitions can be thrown on the ground of non exhaustion of alternative remedy. We need not to multiply various authorities on the subject but apt it would be to refer a recent one of the Apex Court in M/s Popcorn Entertainment and another v. City Industrial Development Corporation and another, JT 2007(4) SC 70 wherein the Court has reiterated three exceptions for entertaining writ petition without relegating parties to avail alternative remedy and has said that if the action of the authorities is illegal and without jurisdiction; if the principles of natural justice have been violated and if the fundamental rights of the other side is violated, the writ petition would be maintainable, as is evident from para 15 to 19 and 44 of the judgment. 11. All the three exceptions are applicable in these cases, if the contention of petitioners are upheld. Since the issues raised involve not only jurisdictional issue but also the constitutional rights of petitioners, i.e., non deprivation of their property except in accordance with the procedure prescribed in law, we are of the view that the said issues should be settled by this Court so as to avoid multiplicity of litigation on the same issues before various authorities. Moreover, vires of notification dated 27.6.2006 of the State Government issued under Section 126 of the Act, 2003 is also involved. It is well settled principle that an authority constituted under a provision cannot judge the validity of the order in the nature of delegated legislation, therefore, the question as to whether the said notification is valid or not cannot be decided either by the assessing officer or even by appellate authority under Section 127 of the Act, 2003. Hence it is appropriate that these issues should be decided in these writ petitions without relegating the parties to avail alternative remedy. We accordingly negative preliminary objection and proceed to decide the issues on merits. 12. Hence it is appropriate that these issues should be decided in these writ petitions without relegating the parties to avail alternative remedy. We accordingly negative preliminary objection and proceed to decide the issues on merits. 12. From the rival submissions and arguments advanced by the learned Counsel for the parties, the questions which need adjudication by this Court are as under : (1) Whether the notification dated 27.6.2006 issued by the State Government in exercise of its power under Clause-(a) Explanation to Section 126 of Act, 2003 is valid inasmuch DVVNL (Agra Discom) can be said to be a ‘licensee’ under Act, 2003? (2) Whether DVVNL is a Government Electrical Undertaking as defined under Section 2(c) of 1958 Act? (3) Whether Executive Engineer of DVVNL is a prescribed authority as defined under Section 2 (b) of 1958 Act? (4) Whether demand notice issued under Section 3 of 1958 Act by the Executive Engineer describing himself as Executive Engineer, UPPCL, Sikandara, Agra is valid? (5) Whether allegations of unauthorised user of electricity were properly and in specific and understandable manner communicated to the petitioners? (6) Whether the provisional assessment notices issued by the Executive Engineer, DVVNL making assessment against the concerned petitioners are in accordance with the procedure prescribed under Section 126 of Act, 2003 read with Clause-6.8 of U.P. Electrical Supply Code, 2005? 13. The first question which we are confronted is whether notification dated 27.6.2006 (Annexure-20 to the writ petition) is valid or is ultra vires of the explanation (a) of Section 126 of Act, 2003. 14. Section 126 of Act, 2003 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. (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. (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 purpose of this section,— (a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) “unauthorised use of electricity” means the usage of electricity— (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised.” (emphasis added) 15. In exercise of the aforesaid power the State Government has published notification dated 27.6.2006 as under : “In pursuance of the provisions of clause (a) of the Explanation to Section 126 of the Electricity Act, 2003 (Act No. 36 of 2003) and in supersession of Government order No. 231-P-2004-24-27P/98, dated January 17, 2004 the Governor is pleased to designate,— (a) the Executive Engineers of the Distribution Divisions of the Madhyanchal Vidyut Vitran Nigam Limited, Lucknow, Purvanchal Vidyut Vitran Nigam Limited, Varanasi, Paschimanchal Vidyut Vitran Nigam Limited, Meerut, Dakshinanchal Vidyut Vitran Nigam Limited, Agra and Kanpur Electricity Supply Company, KESCO, Kanpur as Assessing Officer within their respective jurisdiction, and (b) the Assistant Managers of NOIDA Power Company Limited as the Assessing Officers within their respective jurisdiction.” 16. Learned Counsel for the petitioners contended that DVVNL is a company incorporated in the year 2003 and has neither applied nor granted any licence either under 1999 Act or the Act, 2003 and, therefore, cannot be treated to be a ‘licensee’ under the Act, 2003. That being so, the respondent No. 3, an employee of respondent No. 2, i.e., DVVNL could not have been notified an ‘assessing officer’ under Section 126 of the Act, 2003 and, therefore, the aforesaid notification dated 27.6.2006 is ultra vires of the Act, 2003. 17. Before examining the aforesaid question, it would thus be relevant to have a bird eye view of the historical background of power sector reforms in the State of U.P. and statutory provisions contained in various statutes applicable thereto. These aspects to some extent have already been dealt with by a Division Bench of this Court in M/s Maa Vind Vasini Industries and another v. Purvanchal Vidyut Vitran Nigam Ltd. D.L.W. Bhikharipur, Varanasi and others, 2008(1) ADJ 75 (DB) and we find it useful to quote para 15 and 16 thereof as under : “15. In the State of Uttar Pradesh, generation, distribution and transmission of electrical energy initially, and in particular after 1975, was solely in the hands of the U.P. State Electricity Board (in short ‘UPSEB’), a statutory body constituted under Section 5 of the Electricity (Supply) Act, 1948 (in short ‘1948 Act’). With the expansion of the generation units, a Government company, namely, U.P. Rajya Vidyut Utpadan Nigam Limited (in short ’UPRVUNL’) was incorporated under the Companies Act, 1956 in the year 1980. With the expansion of the generation units, a Government company, namely, U.P. Rajya Vidyut Utpadan Nigam Limited (in short ’UPRVUNL’) was incorporated under the Companies Act, 1956 in the year 1980. It is wholly owned by the State Government of Uttar Pradesh. Similarly, in 1985, another company, U.P. Jal Vidyut Nigam Limited (in short ‘UPJVNL’) was incorporated which was also wholly owned by the State Government of U.P. A major power reform was brought into force in the year 1999 by the legislature enacting Reforms Act, 1999 which was assented to by the President of India on 23.6.1999 and published in U.P. Gazette (Extraordinary) on 7.7.1999. Section 13 of Reforms Act, 1999 provides for formation of a company namely UPPCL registered under the Companies Act, 1956, which is required to undertake planning and co-ordination in regard to transmission, to determine electricity requirement in the State in consultation with the generation companies etc. and be a legal successor of UPSEB in relation to all power purchase and transmission agreements. Section 23(1) of Reforms Act, 1999 provides that on and from the date specified in the Transfer Scheme prepared by the State Government to give effect to the objectives of the Act, all properties, interest, right and liabilities of UPSEB shall be vested in the State Government and, thereafter, shall re-vest in UPPCL and generating companies in accordance with the Transfer Scheme so specified, on such terms and conditions as may be determined, by the State Government. 16. The State Government in exercise of the powers under Section 23 (1) and (2) of Reforms Act, 1999 published U.P. Electricity Reforms Transfer Scheme, 2000 (hereinafter referred to as ‘Transfer Scheme, 2000’), which came into force on 14th January, 2000. Under clause 4 and 5 of Transfer Scheme 2000 all thermal generating undertakings stood transferred to UPRVUNL, hydro generating undertakings transferred to UPJVNL and the undertakings forming part of transmission and distribution to UPPCL.” 18. By another transfer scheme notified on 15.1.2000 assets, liabilities and personnel of Kanpur Electricity Supply Authority were transferred to another company namely, Kanpur Electricity Supply Company which was also registered as a “Government Company” under the Companies Act, 1956 (hereinafter referred to as the “1956 Act”). Since then, the aforesaid companies were operating and distributing electricity in the State of U.P. 19. In the year 2003 the State of U.P. felt need for further unbundling of UPPCL. Since then, the aforesaid companies were operating and distributing electricity in the State of U.P. 19. In the year 2003 the State of U.P. felt need for further unbundling of UPPCL. Four new companies were thus formed namely, (1) Dakshinanchal Vidyut Vitran Nigam Limited (Agra Discom), (2) Madhyanchal Vidyut Vitran Nigam Limited (Lucknow Discom) (3) Paschimanchal Vidyut Vitran Nigam Limited (Meerut Discom) and (4) Purvanchal Vidyut Vitran Nigam Limited (Varanasi Discom). With the incorporation of the aforesaid four companies the distribution of electrical energy in the territorial jurisdiction of the aforesaid four companies got transferred to them w.e.f. 12.8.2003 and UPPCL ceases to be a distributing company then on in view of clause 2(g) read with clause 3 of U.P. Power Sector Reforms (Transfer of Distribution Undertakings) Scheme, 2003 (hereinafter referred to as “Transfer Scheme, 2003”) published in exercise of power under sub-section (4) of Section 131 of Act, 2003 read with Section 23 (4) of 1999 Act. 20. Clause 2 (g) of the Transfer Scheme, 2003 defines effective date of transfer as under : “2 (g) “Effective date of transfer” means the date of publication of this Scheme in the official Gazette;” 21. Clause 3 of the said Scheme provides for classification and transfer of undertakings of UPPCL to the aforesaid four companies as under : “3. Classification and Transfer of Undertakings.—(1) The existing business and undertakings of Uttar Pradesh Power Corporation Limited shall stand classified, namely as : (a) Zone-I Distribution Undertakings as set out in Schedule-A; (b) Zone-II Distribution Undertakings as set out in Schedule-B; (c) Zone-III Distribution Undertakings as set out in Schedule-C; (d) Zone-IV Distribution Undertakings as set out in Schedule-D; (e) Transmission Undertakings and Residuary Undertakings as per clause 3(4) with the assets and liabilities as set out in Schedule-D1. (2) On and with effect from the Effective Date of Transfer, without any further act(s) or thing(s) to be done by the State Government, UPPCL, any distribution company, the personnel, their respective debtors or creditors, or any other person, the Distribution Undertakings related to Zone-I, Zone-II, Zone-III and Zone-IV and set out in Schedules A, B, C and D shall stand transferred to Agra Discom, Lucknow Discom, Meerut Discom and Varanasi Discom respectively, subject however to terms and conditions specified in this Scheme. (3) In consideration of the transfer of Distribution Undertakings related to Zone-I, Zone-II, Zone-III, and Zone-IV by UPPCL to Agra Discom, Lucknow Discom, Meerut Discom and Varanasi Discom respectively in terms of the Transfer Scheme, Agra Discom, Lucknow Discom, Meerut Discom and Varanasi Discom shall issue and allot equity shares and/or instruments to UPPCL as specified in Schedules A, B, C, D respectively. (4) The transmission and residuary undertakings with the assets and liabilities specified in Schedule D1 and all proceedings, and personnel, other than those specified in sub-rule (2) as forming part of any Distribution Undertakings, shall continue to remain and belong to UPPCL. (5) On the transfer and vesting of the Distribution Undertakings and except as otherwise provided in this Transfer Scheme, the relevant distribution company shall be responsible for all, or the relevant part of any contracts, tenders, rights, deeds, Schemes, bonds, agreements and other instruments of whatever nature relating to the Distribution Undertakings, which are subsisting or having effect on the Effective Date of Transfer, in the same manner as UPPCL was liable immediately before the Effective Date of Transfer and the same shall be in full force and effect against or in favour of the relevant distribution company and may be enforced as fully and effectively as if instead of UPPCL, the relevant distribution company had been a party thereto.” 22. In respect to DVVNL, i.e., Agra Discom, Schedule A of Transfer Scheme, 2003 contains the description of distribution assets, general assets/liabilities, other assets and miscellaneous items. Para V, Schedule A of Transfer Scheme, 2003 provides as under : “V. The State Government may however, transfer any of the above assets, liabilities, proceedings etc. within one year from the effective date the State Government may consider appropriate to the UPPCL or any of the Distribution Companies.” 23. It is not in dispute that till date, no assets, liabilities, proceedings etc. which stood transferred to DVVNL (Agra Discom) has been transferred back to UPPCL or any other distribution company in exercise of power in para-V Schedule A of Transfer Scheme, 2003. Therefore, whatever stood transferred to DVVNL, i.e., Agra Discom with effect from 12.8.2003 is continuing thereafter with DVVNL and UPPCL had ceased to be a Distribution Undertaking in respect to the said area over which DVVNL (Agra Discom) is operating as a Distribution Undertaking. Therefore, whatever stood transferred to DVVNL, i.e., Agra Discom with effect from 12.8.2003 is continuing thereafter with DVVNL and UPPCL had ceased to be a Distribution Undertaking in respect to the said area over which DVVNL (Agra Discom) is operating as a Distribution Undertaking. It would be useful to clarify at this very stage as to the area transferred to DVVNL and the meaning of the word “Distribution Undertaking”. The term “Distribution Undertaking” has been defined in Clause 2(e) of Transfer Scheme, 2003 and reads as under : “(e) “Distribution Undertakings” means, (i) with respect to the Agra Discom, the distribution business and the assets, liabilities, proceedings and personnel specified in the Schedule “A”; (ii) with respect to Lucknow Discom, the distribution business and the assets, liabilities, proceedings and personnel specified in the Scheduled “B”; (iii) with respect to Meerut Discom, the distribution business and the assets, liabilities, proceedings and personnel specified in the Scheduled “C”; (iv) with respect to Varanasi Discom, the distribution business and the assets, liabilities, proceedings and personnel specified in the Schedule “D”; 24. The term “Agra Discom” has been defined in Clause 2(b), which reads as under : “(b) “Agra Discom” means the Dakshinanchal Vidyut Vitaran Nigam Limited, which is incorporated with the principal object of engaging in the business of distribution and supply of electricity in the areas under Zone-I as specified in Part I of Schedule-I of this Scheme;” 25. Part-I Schedule I provides for area of supply and distribution of Agra Discom and reads as under : “Part-I The Agra Discom shall have the area of supply as the following existing Distribution Zones of the UPPCL (a) Agra Zone (b) Jhansi Zone (c) Kanpur Zone” 26. There is another aspect which may also be considered hereat. In view of Clause 3 though the entire assets, liabilities, personnels etc. of UPPCL with respect to existing business and undertaking of distribution stood transferred with effect from 12.8.2003 to various Distribution Undertakings as defined under Clause 2(e) of Transfer Scheme, 2003, but Clause 4 read with 7 and 8 thereof provide, the transfer is provisional at the first instance and liable to be finalized subsequently. of UPPCL with respect to existing business and undertaking of distribution stood transferred with effect from 12.8.2003 to various Distribution Undertakings as defined under Clause 2(e) of Transfer Scheme, 2003, but Clause 4 read with 7 and 8 thereof provide, the transfer is provisional at the first instance and liable to be finalized subsequently. As per Clause 7 and 8 of Transfer Scheme, 2003, the provisionality of transfer was to continue for a period of 12 months, thereafter it shall be treated to be final but in view of the amendments made thereunder in the year 2008, the period has been extended to five years, i.e., upto 12.8.2008. 27. From Annexure-CA-3 to the counter affidavit it is evident that in respect to DVVNL majority shares are held by UPPCL and some smaller number of shares are held by certain individuals holding the position of Director, Managing Director and Chief General Manager in UPPCL or DVVNL. It is not in dispute that DVVNL has neither applied nor granted any licence under 1999 Act or the Act, 2003. In these circumstances we have to consider, whether, for the purpose of Section 126 of the Act, 2003, DVVNL can be said to be a ‘licensee’ since only then the notification dated 27.6.2006 could have been issued by the State Government notifying officers of DVVNL as ‘assessing officer’ under Section 126 of the Act, 2003. 28. Section 14 of the Act, 2003 deals with grant of licence and the relevant part thereof reads as under : “14. Grant of licence.—The Appropriate Commission may, on an application made to it under Section 15, grant a licence to any person— (a) to transmit electricity as a transmission licensee; or (b) to distribute electricity as a distribution licensee; or (c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence : ..................................................... Provided also that the Government company or the company referred to in sub-section (2) of Section 131 of this Act and the company or companies created in pursuance of the Acts specified in the Schedule, shall be deemed to be a licensee under this Act : .....................................................” (emphasis added) 29. The term “licensee” has also been defined under Section 2(39) of the Act, 2003 and reads as under : “(39) “licensee” means a person who has been granted a licence under Section 14;” 30. The term “licensee” has also been defined under Section 2(39) of the Act, 2003 and reads as under : “(39) “licensee” means a person who has been granted a licence under Section 14;” 30. The relevant proviso of Section 14 with which we are concerned in this case, a perusal thereof clearly shows, that a Government company or a company referred to in sub-section (2) of Section 131 of the Act, 2003 and the company or companies created in pursuant of the Act specified in the schedule shall be deemed to be a ‘licensee’ under this Act, i.e., the Act, 2003. The aforesaid thus talks of the following companies as ‘deemed licensee’ under the Act, 2003 : (1) A Government company; (2) Company referred to in Section 131(2) of the Act, 2003; (3) Company or companies created in pursuant of the Act specified in the schedule, i.e., Orissa Electricity Reform Act, 1995, Haryana Electricity Reform Act, 1997, Andhra Pradesh Electricity Reform Act, 1998, Uttar Pradesh Electricity Reform Act, 1999 Karnataka Electricity Reform Act, 1999, Rajasthan Electricity Reform Act, 1999, Delhi Electricity Reforms Act, 2000, Madhya Pradesh Vidyut Sudhar Adhiniyam 2000 and Gujarat Electricity Industry (Reorganization and Regulation) Act 2003. 31. At this stage learned Counsel for the petitioner sought to argue that in the proviso the words ‘Government company’ or the ‘company’ before the words “referred to in sub-section (2) of Section 131 of this Act” must be read as if both i.e. ‘Government company’ or the ‘company’ are such which are referred to in sub-section (2) of Section 131 and should not be read separately being distinct classes. We are not impressed with the submission for the simple reason that under Section 131(1) of the Act, 2003 the State Government is entitled to transfer the property, rights and liabilities etc. of a State Electricity Board constituted under Section 5 of Electricity Act, 1948 to the State Government itself and thereafter under sub-section (2) it shall be revested in a Government company or a company or companies in accordance with the said transfer scheme. The words ‘Government company’ or ‘company’ or ‘companies’ have already been used in Section 131(2) of the Act, 2003. The words ‘Government company’ or ‘company’ or ‘companies’ have already been used in Section 131(2) of the Act, 2003. If this would have been the intention of legislature as argued by learned Counsel for the petitioner, while legislating proviso to Section 14 of the Act, 2003, there was no occasion for using both the words namely, ‘Government company’ or the ‘company’ in proviso to Section 14 of the Act, 2003 since both these words already exist in Section 131(2) of the Act, 2003. Both have been mentioned distinct in Section 14, proviso. It means that the legislature intended to treat a ‘Government company’ as a ‘deemed licensee’ under Section 14 of the Act irrespective of the fact whether it has been transferred property interest, rights and liabilities etc. of the State Electricity Board under Section 131(2) of the Act or is created as a new company to undertake the same or has already been vested of the said property under some other statute not referable to Section 131(2) of the Act, 2003. We, therefore, are clearly of the view that for the purpose of proviso of Section 14 of the Act, 2003 a ‘Government company’ is a separate category in itself than the ‘company’ etc. which have been referred to Section 131(2) of the Act, 2003 and that category may also include a ‘Government company’ but i.e. a different aspect and incident. 32. It is not in dispute that UPPCL is a company created in pursuance to the Act specified in the schedule namely, 1999 Act. Though there is a dispute between the parties as to whether the four discoms namely, Agra Discom, Meerut Discom, Lucknow Discom and Varanasi Discom which includes DVVNL also can be said to be the companies created pursuant to 1999 Act but there is no dispute between the parties that the aforesaid discoms are mainly owned by UPPCL which is a ‘Government company’. In order to find out whether DVVNL can be said to be a ‘deemed licensee’ under proviso to Section 14 of the Act, 2003 it is necessary for DVVNL either to qualify as a ‘Government company’, or, ‘as a company created in pursuant to 1999 Act’ since the third category namely, company referred to in Section 131(2) of the Act, 2003 admittedly is not applicable to it. We shall first find out whether it can be said to be a Government company or not since any finding otherwise on this aspect would only render it necessary to consider the second aspect. 33. The term “Government company” is defined under Section 2(31) of the Act, 2003 and reads as under : “2(31) “Government company” shall have the meaning assigned to it in Section 617 of the Companies Act, 1956 (1 of 1956).” 34. Section 617 of 1956 Act defines a “Government company” as under : “617. Definition of “Government Company".— For the purposes of this Act Government company means any company in which not less than fifty one per cent of the paid-up share capital is held by the Central Government, or by any State Government, or Governments, or partly by the Central Government, and partly by one or more State Governments, and includes a company which is a subsidiary of a Government Company as thus defined.” (emphasis added) 35. The definition of ‘Government company’ thus extends to a company which is subsidiary of a ‘Government company’. The term “subsidiary company” has been defined under Section 2(47) read with Section 4 of 1956 Act which are reproduced as under : “2(47) “subsidiary company” or “subsidiary” means a subsidiary company within the meaning of Section 4;” “4. Meaning of “holding company” and “subsidiary”.— (1) For the purpose of this Act, a company shall, subject to the provisions of sub-section (3), be deemed to be a subsidiary of another if, but only if,— (a) that other controls the composition of its Board of Directors; or (b) that other— (i) where the first-mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respects as the holders of equity shares, exercises or controls more than half of the total voting power of such company; (ii) where the first-mentioned company is any other company, holds more than half in nominal value of its equity share capital; or (c) the first-mentioned company is a subsidiary of any company which is that other’s subsidiary.” 36. A conjoint reading of Section 4(1) read with Section 617 of 1956 Act leads to inescapable conclusion that DVVNL is a subsidiary company of UPPCL which admittedly is a Government company and, therefore, DVVNL is also a ‘Government company’ as defined under Section 617 of 1956 Act. Once we reach to this conclusion that DVVNL is a ‘Government company’ as defined under Section 617 of 1956 Act, the answer to question whether it is ‘deemed licensee’ under Section 14 of the Act, 2003 becomes clear. The proviso does not talk of a ‘Government company’ which has already been licensed under any provision or under any statute but the mere fact that it is a ‘Government company’ is sufficient to qualify it to be a ‘deemed licensee’ under proviso to Section 14 of the Act, 2003. Rest of the things are not relevant at all. A deeming provision made in a statute is intended to cover a situation which otherwise does not exist and, therefore, unless there is some restriction provided in the statute itself, expressly or by necessary implication, deeming provision has to be given full effect. 37. In Doypack Systems Private Limited v. Union of India, 1988(2) SCC 299 the Court held that deeming provision generally is intended to enlarge the meaning of a particular word or to include matters which otherwise may not fall within the main provision. It is also true that a legal fiction must be construed having referred to the purpose and object of the Act for which the same was enacted as was observed in Ishikawajma-Harima Heavy Industries Limited v. Director of Income Tax, Mumbai, 2007(3) SCC 481 . We find that in the present case the Act, 2003 besides others, has an objective of unbundling of State Electricity Boards and transfer of its functions to company/companies created by the State Government and others. We do not find that if Government companies are declared to be ‘deemed licensee’ under Section 14 of the Act, the same would defeat or would not further the objective of the Act. 38. Thus a ‘Government company’, by virtue of being a ‘Government company’, would be a ‘deemed licensee’ by virtue of proviso to Section 14 of the Act, 2003, irrespective of any other factor whether exist or not. DVVNL thus a Government company, is a deemed licensee under Section 14 of Act, 2003. 39. 38. Thus a ‘Government company’, by virtue of being a ‘Government company’, would be a ‘deemed licensee’ by virtue of proviso to Section 14 of the Act, 2003, irrespective of any other factor whether exist or not. DVVNL thus a Government company, is a deemed licensee under Section 14 of Act, 2003. 39. Learned Counsel for the petitioners submits that Clause 9 of Transfer Scheme, 2003 provides specifically that the distribution companies namely, Agra Discom, Meerut Discom, Lucknow Discom and Varanasi Discom constituted thereunder would have to obtain a licence from the regulatory commission within 60 days from the date of publication of Transfer Scheme, 2003. The scheme was published on 12.8.2003 and since no licence was obtained by any of the discoms within 60 days thereunder, therefore, it cannot be said that the aforesaid discoms are holding a licence under 1999 Act. 40. The argument, in our view, though at the first flush attract but on deeper scrutiny we found is thoroughly misconceived. We are not considering as to whether DVVNL or a discom referred to in the Transfer Scheme, 2003 has been granted licence under 1999 Act or under any other Act. On the contrary, we are confined to the issue with reference to proviso, Section 14 of Act, 2003 which is an independent provision. The said provision is neither controlled nor is subordinate nor its scope can be restricted in any manner by 1999 Act or by Transfer Scheme, 2003 which is in the nature of a delegated legislation having been issued under Section 23 of 1999 Act read with Section 131(4) of the Act, 2003 and cannot override Section 14 of Act, 2003. In construing the ambit of Section 14, proviso, of Act, 2003, we do not find it necessary to take into consideration the effect and consequences of non-compliance of certain provisions of Transfer Scheme, 2003. For construing Section 14 of Act, 2003, in our view, the principle of plain and simple construction and interpretation has to be followed and adopted. As we have discussed above, Section 14, proviso, of Act, 2003 read with Section 4(1) and 617 of 1956 Act makes it clear that DVVNL is a ‘Government company’, and, that being so, it is a ‘deemed licensee’ under Section 14 of Act, 2003. As we have discussed above, Section 14, proviso, of Act, 2003 read with Section 4(1) and 617 of 1956 Act makes it clear that DVVNL is a ‘Government company’, and, that being so, it is a ‘deemed licensee’ under Section 14 of Act, 2003. Once DVVNL qualify to be a ‘deemed licensee’ under Section 14 of the Act, 2003, it cannot be said that the State Government faulted in any manner in issuing notification dated 27.6.2006 notifying officers of DVVNL as ‘assessing officer’ under Section 126 of the Act. Therefore, we are clearly of the view that notification dated 27.6.2006 is neither illegal nor ultra vires of Explanation (a) of Section 126 of the Act, 2003. We thus hold that the State Government has validly notified the officers of DVVNL which is a ‘Government company’ under Section 617 read with Section 4(1) of 1956 Act, as ‘assessing officer’ and, therefore, the assessment orders issued by the said authorities cannot be said to be illegal or without jurisdiction on this ground. 41. The second question which needs to be considered is whether DVVNL qualifies to be a Government Electrical Undertaking under Section 2(c) of 1958 Act so as to take steps for recovery of its dues from its consumers as arrears of land revenue as per the procedure prescribed under 1958 Act? 42. We have already held that DVVNL (Agra Discom) is a Government company in view of the provisions contained under Section 617 of 1956 Act read with definition of Subsidiary Company as provided in Section 4 of the said Act. In view of the specific definition of Government Company, it is true that DVVNL is a subsidiary company of UPPCL, yet, by that itself it does not mean that DVVNL has no independent identity and for all purposes is a part and parcel of UPPCL. It is well settled that one who own certain property, assets, liability etc. cannot transfer the same to himself. For making transfer of property, assets, liabilities etc. existence of more than one is necessary. DVVNL has been incorporated as a separate Government Company though its majority shares are owned by UPPCL. It is a subsidiary company of UPPCL but that does not extinguish the independent and separate entity of DVVNL. cannot transfer the same to himself. For making transfer of property, assets, liabilities etc. existence of more than one is necessary. DVVNL has been incorporated as a separate Government Company though its majority shares are owned by UPPCL. It is a subsidiary company of UPPCL but that does not extinguish the independent and separate entity of DVVNL. This independent entity of DVVNL is fortified from the fact that under the Transfer Scheme, 2003 assets, liabilities, properties of UPPCL with respect to distribution business have been transferred from UPPCL to DVVNL (Agra Discom). Therefore, the mere fact that DVVNL is a subsidiary company of UPPCL, it cannot be said to be a part and parcel of UPPCL as if having no separate identity or legal and juristic personality. We can understand this from example of UPPCL also where 100 per cent shares are owned by the State Government, yet UPPCL is not a department and part and parcel of the State Government, but is a separate juristic personality for all purposes. UPPCL and the State Government are two different bodies. A similar question has been considered by a Division Bench of this Court in Rajeev Kumar Jauhari and others v. State of U.P. and others, 2007 (4) ESC 2253 : 2007 (7) ADJ 110 (DB) wherein this Court held as under : “Merely for the reason that the State Government is 100% share holder of the company does not identify the company itself with the State Government. In Shrikant v. Vasant Rao, 2006 (2) SCC 682 , the Court held in para 24 that in the matter of a company where the entire share capital is held by the State Government, yet it cannot be identified with the State Government and is always entitled to act and proceed in a manner a company function. This principle was recognized as long back as in 1970 also by a Constitution Bench in R.C. Cooper v. Union of India, AIR 1970 SC 564 , and at page 584, the Apex Court held : “A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the Company is not the property of the shareholders. Property of the Company is not the property of the shareholders. A shareholder has merely an interest in the Company arising under its Article of Association measured by a sum of money for the purpose of liability, and by a share in the profit.” 43. The aforesaid view was reiterated in Heavy Engineering Mazdoor Union v. State of Bihar and others, AIR 1970 SC 82 ; Andhra Pradesh State Road Transport Corporation v. Income Tax Officer, AIR 1964 SC 1486 ; Western Coalfields Ltd. v. Special Area Development Authority, AIR 1982 SC 697 . A Constitution Bench of the Apex Court in M/s. Electronics Corporation of India Ltd. v. Secretary, Revenue Department, Government of A.P., AIR 1999 SC 1734 , in Para-15 of the judgment held as under : “A clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares.” 44. Similar question has again been considered by another Division Bench of this Court in M/s Maa Vind Vasini Industries (supra) wherein in para-36 and 38 of the judgement, the Court observed as under : “36. The company where shareholding is owned by the Government can never be treated to be a department of the Government and it has a separate legal existence for all purposes, and, has to function in accordance with the Article of Association and the provision of the Companies Act. 38. Thus it is evident that once independent companies have come into existence, rights, property and obligations have also vested therein separately, they are all totally separate and individual bodies and have to function in an autonomous manner without any influence from any third party except to the extent the statutory provisions otherwise require. We have not been shown any provision under which an officer of UPPCL can issue binding orders to other companies like various Discoms including the respondent No. 1.” 45. We have not been shown any provision under which an officer of UPPCL can issue binding orders to other companies like various Discoms including the respondent No. 1.” 45. That being so, we have no hesitation in observing that even though DVVNL is a Government company in view of the provisions of Companies Act but being an independent electrical undertaking having its own identity, it cannot be identified with UPPCL for a purpose more than what is prescribed in law. Since it is a separate and independent distribution company to which assets, liabilities etc. of UPPCL have been transferred under the Transfer Scheme, 2003, it is a separate Undertaking and unless notified as required by Section 2(c) of 1958 Act, in our view, cannot qualify to be a ‘Government Electrical Undertaking’ under 1958 Act to avail the benefit of the said Act and the procedure prescribed thereunder for recovering its dues from its consumers. 46. The learned Counsel for the respondents, in its counter affidavit, has placed on record a Government notification dated 9.1.2001 whereby UPPCL and the Executive Engineers of UPPCL, who are concerned with distribution, maintenance and revenue recovery have been notified as “Government Electrical Undertaking” and “prescribed authority” under Section 2 (c) and (b) of 1958 Act. He argued that since DVVNL is a subsidiary company of UPPCL, therefore, it would be deemed to be a ‘Government Electrical Undertaking’ under Section 2 (c) of 1958 Act and need not to be separately notified thereunder. However, we are not able to agree with the submission. The DVVNL being a separate and independent distribution company cannot be deemed to be a Government Electrical Undertaking merely because its majority share holder, namely, UPPCL has been notified to be ‘Government Electrical Undertaking’ by the State Government. The State Government when notified UPPCL and its Executive Engineers dealing in distribution, maintenance and revenue recovery, has confined only to them and none else. The DVVNL in the garb of UPPCL cannot be deemed to be a ‘Government Electrical Undertaking’ under Section 2(c) of 1958 Act unless so expressly provided in the statute or by necessary implication and there is no other alternative but to come to such a conclusion. The DVVNL in the garb of UPPCL cannot be deemed to be a ‘Government Electrical Undertaking’ under Section 2(c) of 1958 Act unless so expressly provided in the statute or by necessary implication and there is no other alternative but to come to such a conclusion. Since DVVNL and other Discoms have been separately created as independent entity and the distribution business of UPPCL has been transferred to those undertakings, we cannot accept the submission of the respondents that the notification pertaining to UPPCL would ipso facto be extendable and apply to DVVNL and other Discoms. We are also fortified in taking this view from sub-section (4) of Section 131 whereunder the distribution and supply work of electricity of UPPCL has been transferred to various distribution undertakings including DVVNL (Agra Discom), which reads as under : “(4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub-section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating company or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.” (emphasis added) 47. The words “being any other generating company or transmission licensee or distribution licensee” to which the property, interest in property, rights and liabilities etc. are to be transferred under Transfer Scheme must be other than the Government Company or companies being State transmission utility or generating company or transmission licensee or distribution licensee as referred to in sub-section (2) of Section 131 of the said Act. Since Transfer Scheme, 2003 has been notified under Section 131 (4) of the Act, it is clear that the State Government understands and knows that various distribution companies including DVVNL (Agra Discom) are distinct from UPPCL. This is also fortified from the fact that in Clause 9 of the Transfer Scheme, 2003, it has been provided that the new distribution company shall apply to the commission for grant of licence under 1999 Act or Act, 2003 to undertake the business of distribution and retail supply of electricity in their area of operation. This is also fortified from the fact that in Clause 9 of the Transfer Scheme, 2003, it has been provided that the new distribution company shall apply to the commission for grant of licence under 1999 Act or Act, 2003 to undertake the business of distribution and retail supply of electricity in their area of operation. We, therefore, have no hesitation to hold that DVVNL having not been notified under Section 2(c) as a ‘Government Electrical Undertaking’, it cannot take steps for recovery of its dues as arrears of land revenue by taking help to the procedure prescribed under Sections 3 and 5 of 1958 Act and the said Act is inapplicable to it. 48. Learned Counsel for the respondents sought to argue that the definition of ‘Government Electrical Undertaking’ is inclusive and, therefore, it cannot be restricted to only those electrical undertakings run or controlled by the State Government or by the Board as may be notified but a Government company, if it is engaged in electricity transmission, distribution or generation, that would also be covered by the term ‘Government Electrical Undertakings’ as defined under Section 2(c) of 1958 Act irrespective of whether it is notified or not. However, the submission has no substance. From a bare perusal of the 1958 Act and its objective it is evident that it is applicable to Government Electrical Undertaking for recovery of dues in respect to electrical energy supplied to the consumer. 1958 Act was enacted about 50 years back when supply of electricity in the State of U.P. was not with the U.P. State Electricity Board but at that time the electricity was being supplied in the State of U.P. by various undertakings owned either by the State Government or local bodies/authorities or private companies. The U.P. State Electricity Board itself was created in the year 1959, and in phases, the electricity supply undertakings of State Government and other licensees were transferred. The inclusive definition of ‘Government Electrical Undertakings’ thus refers to the electrical undertakings owned by the State Government directly as its own department or the U.P. State Electricity Board which was created in 1959 and the entire work and staff of Government department dealing with electricity supply was transferred to it. The inclusive definition of ‘Government Electrical Undertakings’ thus refers to the electrical undertakings owned by the State Government directly as its own department or the U.P. State Electricity Board which was created in 1959 and the entire work and staff of Government department dealing with electricity supply was transferred to it. So far as the companies created subsequently for the aforesaid purpose, if the majority or 100% shareholding belong to State Government or Board, for including those companies, the same has to be notified under Section 2(c) otherwise the words “such other electrical undertaking run or controlled by the State Government or the Board as may be notified in this behalf” would become superfluous and redundant. An interpretation which may render some part of legislation superfluous has to be rejected. 49. We are thus clearly of the view that DVVNL (Agra Discom) cannot be said to be a ‘Government Electrical Undertaking’ under Section 2(c) of 1958 Act unless it is notified for the said purpose under the 1958 Act and, therefore, the said Act has no application to the aforesaid company till it is so notified by the State Government. 50. The third and fourth questions are being dealt together as under. 51. Since question No. 2 has been answered against the respondents and DVVNL has been held not a ‘Government Electrical Undertaking’ under 1958 Act having not been notified thereunder, there is no manner of doubt that its officers and employees can neither be treated to be a ‘prescribed authority’ under 1958 Act nor it is the case of the respondents that the Executive Engineer of DVVNL has been notified under Section 2 (b) as ‘prescribed authority’ to function under 1958 Act as such. Rather a very strange way has been adopted by the respondents. The entire checking has been conducted by the officials of DVVNL and, thereafter, the provisional assessment notice has also been issued by the Executive Engineer of DVVNL. However, the demand notice, which has been issued under Section 3 of 1958 Act, the designation of sender has been shown as Executive Engineer, UPPCL (prescribed authority), Electricity Distribution Division, Sikandara, Agra. The notice also mentions that the consumer concerned has not paid electricity dues payable to UPPCL, a Government Electrical Undertaking and, therefore, should pay the said dues failing which recovery certificate shall be issued to recover the said amount as arrears of land revenue. The notice also mentions that the consumer concerned has not paid electricity dues payable to UPPCL, a Government Electrical Undertaking and, therefore, should pay the said dues failing which recovery certificate shall be issued to recover the said amount as arrears of land revenue. The notice, it is signed by Sub-Divisional Officer on behalf of the Executive Engineer (prescribed authority). 52. After transfer of assets, liabilities and distribution work of UPPCL to DVVNL in respect to Agra, Jhansi and Kanpur zones, as stated above, we are not able to understand as to how the petitioners have been said to be the consumers of UPPCL and that too in 2008. The checking was made by the employees of DVVNL, provisional assessment was made by the Executive Engineer, Distribution Division of DVVNL, Agra and therefore how and when the said dues became payable to UPPCL could not be clarified even by the learned Counsel for the respondents. He also could not explain as to how and why the petitioners have been treated to be the consumers of UPPCL when the distribution undertaking has already been transferred to DVVNL w.e.f. 12.8.2003. Clause-5 of the Transfer Scheme, 2003 also provides that except to the extent specifically provided in the said scheme, after transfer of distribution undertaking, the third party rights shall be restricted to the concerned transferee and such person shall not claim any right or interest against UPPCL and/or with the Board in connection therewith. Similarly Clause 3 and Clause 5 of Transfer Scheme, 2003 also provide that with effect from the effective date of transfer, i.e., date of publication of Transfer Scheme in Official Gazette, which is admittedly 12.8.2003, it is relevant distribution company which shall be responsible for all or the relevant part of any contracts, tenders, rights, deeds, schemes, bonds, agreements and other instruments of whatever nature relating to the Distribution Undertakings in place of UPPCL. It is true that in view of Clause 7 and 8 as amended by notification dated 11.4.2008 vide U.P. Electricity Reforms (Transfer of Distribution Undertaking) (5th Amendment) Scheme, 2008 which has come into force with effect from 12.4.2008, the period of final transfer has been extended by 5 years, but that does not in any manner detract the fact that the distribution work has already been transferred to DVVNL and it is the DVVNL, which is a supplier of electricity to the petitioners and not UPPCL, since 12.8.2003 in Agra, Jhansi and Kanpur Zone by virtue of Transfer Scheme, 2003. That being so, the demand notices issued by the Executive Engineer purporting to be of UPPCL, Sikandara, Agra to the petitioners are wholly without jurisdiction and cannot be sustained. So far as the Executive Engineers of DVVNL is concerned, it is not in dispute that no notification has been issued under Section 2(b) of 1958 Act notifying them to be a ‘prescribed authority’ under the said Act and, therefore, they have no jurisdiction to initiate any recovery proceeding under the said Act. 53. It is also contended by the respondents’ Counsel that since the employees of UPPCL have not been finally absorbed in DVVNL and, therefore, the parent employer of the Executive Engineer concerned, who is working in DVVNL is still UPPCL and hence a demand notice issued by him under 1958 Act would be valid since he is already notified to be a prescribed authority vide notification dated 9.1.2001. We, however, do not agree. In the present case, the petitioners are consumers of DVVNL and if they are liable to pay any dues of DVVNL, it is DVVNL only which can take appropriate steps as permissible in law to recover the said amount from the petitioners. Neither UPPCL nor its employees can have any jurisdiction to proceed against the petitioners since they are no more consumers of UPPCL in view of Transfer Scheme, 2003. Moreover, once the Executive Engineer concerned is working in DVVNL, he cannot describe himself to be an Executive Engineer of UPPCL and that too only for the purpose of taking recovery steps under 1958 Act though otherwise for all purposes he is working with DVVNL. Admittedly UPPCL is no more operating as a distribution licensee in the area which has been transferred to DVVNL. 54. Admittedly UPPCL is no more operating as a distribution licensee in the area which has been transferred to DVVNL. 54. There is another aspect reflecting upon the legality of demand notice issued under Section 3 of 1958 Act. As per Rule 3 of U.P. Government Electrical Undertakings (Dues Recovery) Rules, 1958 (hereinafter referred to as “1958 Rules”). A demand notice has to be issued as per Form-A which provides that it has to be issued and signed by the prescribed authority. It does not contemplate any authorization by the prescribed authority notified under 1958 Act authorizing any one else to sign a legal document, i.e., a demand notice under Section 3 of 1958 Act. In the case in hand, demand notice clearly shows that it has been signed by Sub-divisional Officer, though purporting to be acting on behalf of Executive Engineer. In law, i.e., under 1958 Act read with 1958 Rules, it is clear that notice under Section 3 has to be signed by the prescribed authority himself since no power of authorization has been conferred upon the prescribed authority for issuing either notice under Section 3 or recovery certificate under Section 5 of 1958 Act. Therefore, a demand notice issued under the signatures of Sub-divisional Officer, who is a subordinate authority to an Executive Engineer is wholly without jurisdiction. This also negate the validity of notice issued under Section 3 of 1958 Act. 55. Both the questions thus are answered by holding that neither the Executive Engineer of DVVNL is a ‘prescribed authority’ under Section 2(b) of 1958 Act so long it is not notified thereunder nor the impugned demand notices are legal and valid. Fifth and sixth questions : Both can be dealt together : 56. The provisional assessment notices are in question in all these cases except writ petitions No. 21986 of 2008 and 22356 of 2008 and have also been challenged on the ground that neither they have been issued observing the procedure prescribed under Section 126 of the Act, 2007 read with Clause 6.8 of Code, 2005 nor the petitioners have been given adequate opportunity of defence. 57. 57. Sub-section (1) of Section 126 provides that if on inspection, the assessing authority comes to the conclusion that the person concerned is indulged in unauthorized user of electricity, the assessing officer shall provisionally assess, to best of its judgment, electricity charges payable by that person or by any other person benefited by such use. Therefore, the conditions precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that the person concerned has indulged in unauthorized use of electricity. 58. The term “unauthorized use of electricity” is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion. Where a person is held guilty of unauthorised user of electricity, besides making him responsible for paying penalty in the shape of assessment under the Act, 2003 it also causes stigma on his conduct. He is declared an anti-social person indulging in a serious unsocial activity, by causing loss to the society and country in general and electricity undertaking in particular. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. This Court is clearly of the view that before making provisional assessment, the assessing officer, in law, is bound to afford an opportunity to the consumer or person concerned of the allegations of means and ways in which he is said to have unauthorizedly used electricity, and, should be given an opportunity of placing his defence. Thereafter the assessing officer shall record its conclusion with respect to unauthorised use of electricity, to confer upon himself the jurisdiction to issue provisional assessment notice. The object of opportunity at the two stages namely, before arriving at the conclusion of unauthorised use of electricity and before making final assessment are distinct. In the former, it is the very issue whether the consumer is guilty of unauthorised use of electricity or not and in later case it is the quantum of amount which he is required to pay as a compensation and a fiscal preventive measure for committing such irregularity. The first one is the stage of finding the person guilty and later one is the stage of determining extent of monetary liability for compensating electrical undertaking qua the alleged unauthorised use of electricity by such persons. It is only when the proceedings are conducted in the above manner, the assessment made can be held valid and not otherwise. 59. It is true that judicial cognizance can/should be taken of the fact that theft of electricity has become a serious menace and a social evil not only in the State of U.P. but in the entire country. The electricity has become a necessity in the present day of society and development of society as well as nation cannot be conceived of without electricity. The availability of electricity however is much in deficiency. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. The various provisions of Act, 2003 shows that the legislature is also concerned about it and has take several measures from time to time including making harsh provisions in the statute. 60. However, this by itself would not justify condemnation and indictment of a citizen or a consumer of electricity by holding him guilty of unauthorized use of electricity on the vagaries of the officers of electrical undertaking unless he is disclosed the manner in which he was found using electricity unauthorizedly on inspection by the officer concerned and given an opportunity to explain his case, if any. It is well settled law that no person can be indicted or condemned without giving a minimal opportunity of hearing. In the case of unauthorized use of electricity found by the assessing officer at any place or the premises etc. or otherwise, the same has to be disclosed to the person concerned giving him an opportunity to put his defence. The principles of natural justice unless excluded by express provision of the Act or by necessary implication cannot be said to be inapplicable when a citizen or person is being indicted of a serious charge, i.e., unauthorized use of electricity, which in some of the cases an offence under Section 135 of Act, 2003. 61. On behalf of the respondents it is argued that in case, such a view is taken, that would amount to delay of issuance of notices and proceedings and may hamper the very objectives of the Act i.e. prevention of theft/unauthorized use of electricity. We are not impressed with the said objection. It is permissible to an ‘assessing officer’ to cover both the aspects of the matter in the show cause notice, which he is required to issue under sub-section (3) of Section 126 of the Act. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. Obviously, no person can come to the conclusion of unauthorized use of electricity suo motu without giving an opportunity to the person concerned and any other procedure would not only be violation of principles of natural justice but would also be arbitrary, infringing Article 14 of the Constitution of India. In order to read Section 126 (1) constitutionally valid, we have no hesitation in observing that before coming to any conclusion the assessing authority would give an opportunity to the person concerned to find out whether he is/was indulged in unauthorized use of electricity. 62. The manner in which we have read Section 126(1) and (3) of the Act, 2003, the U.P. Electricity Regulatory Commission (hereinafter referred to as the “UPERC”) and the distribution licensees working in the State of U.P., have also understood the same as is evident from the procedure prescribed in the Code, 2005 which has been published by UPERC in exercise of its power under Section 50 of the Act, 2003. 63. Para 6.8 (a), (b) and (c) of Code, 2005 deals in detail the procedure for inspection, provisional assessment, hearing and final assessment in the case of unauthorised use of electricity and reads as under : “6.8 Procedure for Inspection, Provisional assessment, Hearing and Final Assessment in case of unauthorised use of electricity (UUE) under Section 126 of the Act (a) (i) An Assessing Officer shall suo-moto, or on receipt of reliable information regarding unauthorised use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (1)) (ii) The assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members. (iii) The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. (iv) The report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. The Inspecting Officer shall carry seals for this purpose. (v) The report shall clearly indicate whether or not conclusive evidence substantiating the fact that UUE was found. The details of such evidence should be recorded in the report. The report shall be signed by each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed post on the day or the next day of the inspection. (vi) Within 3 working days of the date of inspection, the Assessing Officer shall analyse the case after carefully considering all the evidence including the consumption pattern, wherever available and the report of inspection. If it is concluded that no unauthorised use of electricity has taken place, no further action will be taken. (b) Notice to the Consumer and his reply : (i) If the Assessing Officer suspects that Unauthorised Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assessment bill alongwith show cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing. (ii) The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing. (c) Hearing (i) On the date of hearing, the Assessing Officer shall hear the consumer. (ii) The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing. (c) Hearing (i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing. (ii) A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The consumer shall be required to make the payment within 15 days of receipt of final order for assessment. (iii) If the Assessing Officer finds that unauthorised use of electricity has taken place (as defined under explanation to Section 126 of the Electricity Act, 2003, it shall be presumed unless contrary is proved, that such unauthorised use of electricity was continuing for either actual period of misuse, if available, or three months immediately preceding the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3. (iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer’s liability to pay monthly/annual charges, wherever applicable.” 64. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b)(ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c)(i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer. 65. In these cases the assessing officer has proceeded to make assessment in a very strange manner. We propose to take the facts as stated in the counter affidavit filed on behalf of respondents No. 2 and 3 in the leading Writ Petition No. 21073 of 2008 (Ashok Kumar and others v. State of U.P. and others). In other cases also, the situation is more or less same. As stated in para 6 of the counter affidavit, on 15.1.2008 an inspection was made by the Enforcement Squad of DVVNL at the petitioners’ premises and it took out MRI of the meter. The copy of the MRI report dated 15.1.2008 is Annexure-CA-1. It shows that the Assistant Engineer (Meter) First and Second, Sri J.K. Gupta and Pankaj Agarwal respectively got the said report prepared, signed the same and concluded that voltage imbalance/missing, CT short and CT open and Tamper are recorded in irregular manner. The copy of the MRI report dated 15.1.2008 is Annexure-CA-1. It shows that the Assistant Engineer (Meter) First and Second, Sri J.K. Gupta and Pankaj Agarwal respectively got the said report prepared, signed the same and concluded that voltage imbalance/missing, CT short and CT open and Tamper are recorded in irregular manner. They also said that sometimes in one phase itself the sufficient amount of electricity was available for use which is not consistent with the potential and current parameters and since electricity has been consumed as per the MRI, this shows that it has been unauthorizedly used by the consumer. 66. In para 7 and 8 of the counter affidavit it is said that on the basis of MRI report dated 15.1.2008, provisional assessment was made on 18.3.2008 giving seven days time to the consumer to file his objection, which he failed and, therefore, treating provisional assessment to be final, demand notice dated 29.3.2008 was issued for recovering a sum of Rs. 3,83,644/-. In para 16 of the counter affidavit, referring to MRI report it is said that lesser consumption was recorded in display unit which was due to deliberate action of the petitioners and, therefore, assessment under Section 126 was made against them. 67. We have perused the MRI report. We also required the learned Counsel of the respondents to explain as to how and in what manner MRI shows unauthorised use of electricity by the consumer by his deliberate act or omission in the metering system. To explain the same learned Counsel for the respondents, after receiving instructions, alongwith his written submission, has placed before this Court a separate note explaining the manner in which the authorities concluded theft/unauthorised use of electricity at the premises by the petitioner, Ashok Kumar and the same may be reproduced as under : “Cumulative tamper status recorded through M.R.I. shows the tamper details event wise in which date of occurrence/recovery of tamper, time duration and other parameters like voltage, current, power factor and energy units are recorded. In case of Ashok Kumar tamper status shows that voltage of B Phase is zero while current in this phase is 18 A. Similarly voltage in R Phase and Y Phase are 430 Volt approximately in place of 230 Volt and current in both the faces being Zero. In case of Ashok Kumar tamper status shows that voltage of B Phase is zero while current in this phase is 18 A. Similarly voltage in R Phase and Y Phase are 430 Volt approximately in place of 230 Volt and current in both the faces being Zero. A three phase motor cannot run with phase voltage is zero but in the same phase current is being recorded, it indicates that face voltage has been supplied through any other unauthorised means. Similarly, meter records 220 V with respect to neutral but in this case R Phase and Y Phase Voltage are 430 V approximate. This is only possible when Phase voltage is connected to neutral point by any means. Due to this reason current of both the phases is zero. Practically such type of consumers use this earthing as a neutral. Residence Connection In Kheragarh town, generally consumers have installed their oil plant in ground floor and have taken separate residential connection in upper floor which is unmetered supply. They take the advantage of unmetered supply by connecting one phase or two after the meter of oil plant due to which motor gets three phase supply and it runs but the energy is not recorded in the meter while even three phase voltages are recorded. Energy Recording Energy = Voltage x Current x PF x No. of hrs. It means if either voltage or current is zero, then energy recording will be zero. That is why energy recording is affected by tampering.” 68. The correct way in which the meter and its supply is connected by respondents has also been explained in the same note and it would be appropriate to reproduce the same also as under : “Any three phase motor requires three phase supply i.e. 230V with respect to neutral for its running. When motor is started i.e. three phase supply is given through switch/starter, it draws balanced current in all the three phases and these parameters are recorded in the meter installed against the connection." 69. The aforesaid note has been made part of the record. 70. We have also been supplied with the literature i.e. User’s Manual of electronic meter installed at the consumer premises giving detail parameters of the said meter and its working etc. which has also been perused by us. A very interesting aspect is born out from the aforesaid. 71. The aforesaid note has been made part of the record. 70. We have also been supplied with the literature i.e. User’s Manual of electronic meter installed at the consumer premises giving detail parameters of the said meter and its working etc. which has also been perused by us. A very interesting aspect is born out from the aforesaid. 71. First of all it would be appropriate to make clear at this stage that the kind of electronic meter installed at the petitioner’s/consumer’s premise is known as Secure Energy Meter (in short “SEM”) manufactured by a private company namely, M/s Secure Meters Limited, Udaipur. As per the company’s literature i.e. User’s Manual of Consumer Energy Meter (in short “CEM”) the meter is an all-electronic, solid state polyphase energy meter which can accurately measures all parameters of the supply voltage, current, power factor, demand, active, reactive and apparent energy etc. It is designed around an Application Specific Integrate circuit based micro-controller with its own programming language. The company claims that the said meter has a high degree of programmability to accommodate various types of applications and tariffs. The meter reading and other performance data recorded in the meter is downloaded by an instrument known as “Meter Reading Instrument” (MRI) and the said data can be interpreted through the “Base Computer System” (BCS). It is also mentioned therein that besides displaying the readings by digital display the electronic meter has the advantage of memory chip, non-volatile, which can retain data up to a period of 10 years even if there is no power and such data can either be displayed on the electronic display or can be communicated via an optical communication port on to a hand-held MRI. The kind of tamper/fraud detection and logging which such meter records is provided in para 3.10 of the User’s Manual and reads as under: “The special software in consumer energy meter detects and reports conditions of tampers and fraud like missing potential, CT polarity reversal, Current imbalance or CT open/bypass, power on/off etc. along with data and time. (a) Missing Potential: The meter is capable of recording occurrence of missing potential phase wise. Missing potential is checked only when load is above threshold value. Tamper is restored whenever the condition normalises. All such recordings are accompanied by date and time of occurrence. along with data and time. (a) Missing Potential: The meter is capable of recording occurrence of missing potential phase wise. Missing potential is checked only when load is above threshold value. Tamper is restored whenever the condition normalises. All such recordings are accompanied by date and time of occurrence. (b) Current Polarity reversal: The meter is capable of detecting and recording occurrences and restoration of CT polarity reversal of one or more phases. When any current polarity is reserved then such a condition is treated as current polarity reversal tamper . (c) Current Circuit Open: The meter has the capability to record opening of one or two Current circuits connected to the meter along with date and time. (Not applicable in HT 3 phase 3 wire system) (d) Current Circuit bypassing: The meter has the capability to record bypassing of one or two Current circuits connected to the meter along with date and time. (Not applicable in HT 3 phase 3 wire system) (e) Current Unbalance: If there is unbalance in load conditions above a particular threshold limit, meter will detect this condition as Current unbalance and log this as a tamper event. (f) Power On/Off: Meter detects this condition when all the voltages goes below a particular level where meter stop functioning. (g) Magnetic Influence: The meter has the capability of detecting and recording of presence of abnormal magnetic influence near the meter, if the magnetic influence affects the meter functionality. All the events log has been divided into different compartments. The tamper information shall be logged on first-in-first-out basis. Each compartment shall in itself be of rollover type. Our LT meters have provision to record energy in forward direction in case of CT reversal (Factory Programmable). Please note that the tamper information and events shall be available in a CEM depending upon hardware supported and software configured in CEM at the time of manufacturing. Note: The meter works accurately irrespective of phase sequence of the supply.” 72. All these petitioners are LT consumers. The kind of Secure meter installed at the premises of these consumers are LT meters, i.e., low tension meters i.e. E3D type of Secure meter which is a whole current Secure meter for three phase four wire LT connections, current supply range available is 5-30 ampere, 10-60 ampere, 20-100 ampere. All these petitioners are LT consumers. The kind of Secure meter installed at the premises of these consumers are LT meters, i.e., low tension meters i.e. E3D type of Secure meter which is a whole current Secure meter for three phase four wire LT connections, current supply range available is 5-30 ampere, 10-60 ampere, 20-100 ampere. The sealing certificates have been filed alongwith the writ petitions and they show that secure meter 3/4/10-60 ampere was installed. The connection diagram which is given in the User’s Manual in respect to E3D type meter and a note given below the diagram is as under: “Connection Diagrams : (A) E3D Type Meter : Figure 1 : Connection diagram of the E3D Meter Neutral connection should be made as shown in figure 1. Note if neutral source and load end are not connected correctly, false CT open/Bypass tamper will be detected by the meter.” 73. One of the important aspect mentioned in para 8.2 of the User’s Manual is as under : “Warning: Proper voltages and currents to the meter as per the rating plate details of meter are to be given for normal operation.” 74. The sealing report prepared at the time of sealing of the meter shows that the meters, various connections etc. were made safe by installing various kinds of seal i.e. plastic seal, lead wire seal, paper seal, meter body seal, terminal seal etc. It is not the case of respondents that any kind of meter or body seal was found broken or tampered or removed. From the diagram supplied by respondents alongwith the written arguments, it transpired that what actually claimed is that the feeder cable i.e., incoming cable to meter, before entering the meter, at some point of time has been cut and connected with neutral wire so as to bypass the recording of phase voltage in the meter correctly. Without going into any other technicality, we enquire from learned Counsel for the respondents as to whether there is any report of cutting of incoming cable i.e. three phase wire outside the meter so as to draw an inference of manipulation by connecting phase wire/s to neutral instead of allowing it to go to the meter directly. He clearly replied that there is no material on record to show such cutting in the incoming phase cable. He clearly replied that there is no material on record to show such cutting in the incoming phase cable. He could not dispute that the cable supplying electricity from distribution mains to meter is guarded and covered and not naked, and, without cutting its cover it is not possible to connect such incoming phase cable/wire to neutral. He also could not explain how in the absence of any such cut outside the meter, the assessing officer could infer connection of a phase wire with neutral before the meter. From his own document which he has supplied to this Court to explain the method of unauthorised use of electricity allegedly adopted by the petitioners/consumer it is clear that there has to be a cut in the incoming cable outside the meter so as to enable connection of phase wire with neutral otherwise theft/unauthorised use of electricity in the manner suggested by respondents could not have been possible. He also could not dispute the fact that the electronic meter, as per the User’s Manual, functions when the potential, ampere etc. made available to the meter is strictly as per the specifications of rating plate of the meter and if there is any variation, the normal operation of the meter may be adversely affected. 75. The MRI report also shows some more strange facts. In case of Ashok Kumar, for example, the cumulative tamper status shown in the report shows that on certain days, the B phase missing pot has continued for 2-6 days and on some days it has continued to only for a few minutes, i.e., 11 minutes on 27.11.2007. Similarly, on 4.1.2008 this missing has occurred as per MRI report at 5 hours, 58 minutes and 27 seconds in the evening but there is no mention as to when it was restored though at the time of checking on 15.1.2008 it was not found missing. Similarly, CT shorting, i.e., current transformer shorting has also been recorded on certain dates to have continued for several hours while on other dates it has continued for very small time namely, 12 minutes on 2.1.2008 and 7 minutes on 4.1.2008 at 04.34.30 p.m. The two officials who offloaded the data through MRI on 15.1.2008 have not tried to find out the reason for such irregular recording and admittedly have not found any external reason existing on spot explaining such irregularity. We have made these observations not with any intention to record a final opinion on the issue but only to highlight inconsistency in the stand taken by the respondents and the vital clues missing therein which are required to prove a serious allegation of unauthorised use of electricity by the person. 76. It is true that these are all technical matters and normally the Courts should accept the opinion of technical experts but where such opinion is likely to cause a serious stigma on the conduct of the citizens, besides fiscal liability, and rather in some cases it may also render them guilty of committing an offence, it is of utmost importance that such technical experts must prove their opinion with relevant and cogent material. The non-technical and untrained consumer cannot be thrown at the vagaries of such authorities, otherwise it will wide open victimization of innocent people and will encourage corruption. In such cases, the allegation can be explained by finding out the relevant evidence. It is for this reason that the regulatory commission has mentioned in para 6.8 of the Code, 2005 that the details of evidence to substantiate the factum of unauthorised use of electricity has to be recorded in the report as also to be mentioned in the assessment notice and order. 77. From the above discussion it is also evident that the procedure prescribed in para 6.8 of Code 2005, while issuing provisional assessment notice has not been followed at all. Before issuing a demand notice under Section 3 of 1958 Act, admittedly no final order of assessment as contemplated under para 6.8 (c)(i) and (ii) has been passed by the assessing officer. There is no averment in the counter affidavit that MRI report and its findings were made available to the consumers at the time of inspection or alongwith provisional assessment notice after discussing and substantiating the alleged irregularity as required in para 6.8 (a)(iv) and (v). Therefore, it cannot be said that a valid and proper assessment notice was issued to the petitioners which could have been replied by them effectively. Therefore, it cannot be said that a valid and proper assessment notice was issued to the petitioners which could have been replied by them effectively. The kind of notice issued to the petitioners mentions only that on 15.1.2008 departmental officers/enforcement squad found excess load/theft of energy/other irregularities and, therefore, as per Code, 2005 the assessment to the following effect is made and if they want to give any objection, may file the same within seven days, failing which recovery proceeding would be initiated. This is non-compliance of para 6.8 of Code, 2005. 78. Para 6.8 (b)(i) also require assessing officer to give 15 working days time for submission of reply and sub-clause (ii) thereof shows that he shall also fix a date of hearing on which date the consumer shall be heard in person. No such procedure has been followed by the assessing officer in the case in hand, therefore, the impugned provisional notices cannot be sustained being wholly illegal, contrary to the procedure prescribed in para 6.8 of Code, 2005 read with Section 126 of the Act, 2003. 79. In the result, these writ petitions are partly allowed. The impugned provisional/final assessment notices issued under Section 126 of the Electricity Act, 2003 as well as demand notice issued under Section 3 of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958, impugned in these writ petition, are hereby quashed. However, the respondents shall be at liberty to take appropriate steps and pass fresh order in view of the observations made above and in accordance with law. The petitioners shall be entitled to cost which is quantified to Rs. 2000/- for each set of writ petition. ————