Judgment :- 1. By consent of both parties, the main Writ Petition itself is taken up for final disposal. 2. Brief facts leading to the Writ Petition are as follows: The Petitioners are running an industry on lease, under the name and style of M/s.Sri Adhavan Textiles, owned by Mr. P. Ranganathan. Based on the inspection made by the officials of the Tamil Nadu Electricity Board (in short TNEB”), a Complaint was lodged in Crime No.299 of 2006 by the Assistant Executive Engineer (Operation and Maintenance), TNEB, Karadivavi, Second Respondent herein, before the Sub-Inspector of Police, Sulur Police Station, Coimbatore, for an alleged offence of theft of energy. Against which, Petitioners has filed Crl.O.P.No.13688 of 2006, in which, stay of all further proceedings in Crime No.299 of 2006 was granted on 13.06.2006. Thereafter, the Second Respondent has issued a notice, dated 25.03.2006, based on the said Criminal Complaint, under Section 135(1)(b) of the Electricity Supply Act, 2003 (Act 36 of 2003). On receipt of the said notice, a reply, dated 09.06.2006, was submitted by the Petitioners and that the same was also acknowledged by the Respondents. The Petitioners attended the enquiry and contended that they have been regularly paying the current consumption charges without any default and at no point of time, the violation has been brought to their notice. 3. It is contention of the Petitioners that the authorities have no power to initiate action for the alleged offence of theft of energy under the present Act and it is only the “Special Court” Contemplated under Sections 153 and 154(5) of the Indian Electricity Act, 2003 is contemplated to decide the same. Questioning the jurisdiction, they have filed W.P.No.23188 of 2006 before this Court and that the same was allowed on 010. 2006. Thereafter the Second Respondent has passed an final assessment order on 26.09.2007, which was also challenged in W.P.No.36026 of 2007 and that the same was also allowed on 23. 2008, after hearing both sides. However, the Second Respondent has issued a notice, dated 14.07.2008 for provisional assessment, which is put to challenge in this Writ Petition. 4. The Assistant Executive Engineer (Operation and Maintenance), Electricity Distribution Circle (South), TNEB, Karadivavi, Second Respondent herein in his Counter Affidavit, has submitted that on 23.05.2006, the Assistant Executive Engineer (O&M), Karadivavi and the Enforcement Squad, Tiruppur inspected the service connection No.402IIIB Kallapalayam distribution in the presence of Mrs. 4. The Assistant Executive Engineer (Operation and Maintenance), Electricity Distribution Circle (South), TNEB, Karadivavi, Second Respondent herein in his Counter Affidavit, has submitted that on 23.05.2006, the Assistant Executive Engineer (O&M), Karadivavi and the Enforcement Squad, Tiruppur inspected the service connection No.402IIIB Kallapalayam distribution in the presence of Mrs. S. Sridevi, W/o. Senthil Kumar, Second Petitioners, after serving due notice for inspection. At the time of inspection, the Textile Mill was running in full spirit and a Electric Generator, available in that premises, was not functioning. The Service Connection box, consists of 3 Chambers, viz., (i) Current Transformer and Bus bar chamber, (ii) Test Terminal Block chamber, and (iii) Meter chamber. But at the time of inspection, MRT security Seals provided in Current Transformer and Bus bar chamber (Nos.F 65799 and F 65800) and T.T.B. chamber (G 93317) were found tampered. Even the sealing wires, in the seals were found cut and refixed with wax. 5. The Second Respondent has further submitted that the tampered Seals and materials were shown to Tmt. Sridevi W/o. Senthil Kumar, who was present at that time and she neither denied nor explained about the same to the inspecting officers. Since the Seals were found tampered, the Assistant Executive Engineer, Meter Relay Test, Coimbatore, who is the Competent Authority to inspect the M.R.T. seals and the authority, who had provided those seals at the time of effecting service, was called for to confirm the status of the same and he also confirmed in his report that the seals provided in Current Transformers, Bus bar chamber and Test Terminal Block chamber were tampered and the sealing wires were cut and re-fixed with lead and wax. 6. The Second Respondent has further submitted that after getting the report from the Assistant Executive Engineer, Meter Relay Test, Coimbatore, an Observation Mahazer was prepared and given to Tmt. S. Sridevi, to whom the inspection notice was served with acknowledgment and Thiru. P. Ranganathan, owner of the service, who was also present at that time. But, both of them refused to sign the Observation Mahazar, which was recorded and attested by the Village Administrative Officer, Kallapalayam (In-charge), Thiru. A. Ramachandran. They also did not come forward to Compound the offence. Hence, a Police Complaint was lodged on 23.05.2006, to Sulur Police Station in Crime No.299/2006 under Section 135(1) of Indian Electricity Act. But, both of them refused to sign the Observation Mahazar, which was recorded and attested by the Village Administrative Officer, Kallapalayam (In-charge), Thiru. A. Ramachandran. They also did not come forward to Compound the offence. Hence, a Police Complaint was lodged on 23.05.2006, to Sulur Police Station in Crime No.299/2006 under Section 135(1) of Indian Electricity Act. The said Complaint was lodged as per G.O. Notification G.S.379/(E), dated 08.06.2005. Therefore, it is the contention of the Second Respondent that the action taken by the Respondents in lodging a Police Complaint for theft of energy at SC No.402 III B Kallapalayam, by way of tempering of seals, sealing wires found cut and refixed, by way of using lead and wax, etc., is valid in law. 7. The Second Respondent has further submitted that a show cause notice, dated 23.05.2006, was issued to the Petitioners, calling upon them to give a reply to the above notice. After receiving a reply on 09.06.2006, an enquiry was conducted by the First Respondent on 29.06.2006 and 07.07.2006. The Second Respondent has further submitted that the Current Consumption Charges were paid by the Petitioners, as per the demand raised by the Assistant Engineer, Pappampatty. As per the procedure, every month, the Assistant Engineer, Pappampatty used to take monthly readings. In Pappampatty Section, there were 30 L.T.C.T. service connections and that he had to go from one service to another, for taking the readings and all the readings have to be taken in a single day. In such circumstances, the inspection of other things, like checking of the seals, installation and other aspects are not possible to be done on the same day, while taking readings. 8. The Second Respondent has further submitted that as per B.P.No.147, dated 14.07.2005, whenever theft of energy is detected, a provisional assessment (due to loss of revenue caused to the TNEB) is made for one year from the date of last inspection of M.R.T. or Enforcement squad, whichever is later. Therefore, the Second Respondent has submitted that the provisional assessment that was made for one year from date of detection of theft of energy is valid in law. 9. Therefore, the Second Respondent has submitted that the provisional assessment that was made for one year from date of detection of theft of energy is valid in law. 9. The Second Respondent has further submitted that while allowing W.P.No.23188 of 2006, this Court has clearly observed that it is open to the Respondents to proceed further in accordance with law, once the provisions as contemplated under the Electricity (Removal of difficulties) Order, 2005 are included, even if the method of assessment of Electricity charges in case of theft of Electricity is pending adjudication before the Criminal Court. The Removal of Difficulties in the procedure of assessment and the Competent authority to assess the value of theft of energy had been notified in T.N.E.R.C./SC/7-4, dated 25.05.2007 and that the same was published in Government Gazette, dated 13.06.2007, whereby, new Regulations 19-A and 23 of the Principal Code were inserted with retrospective effect from 01.09.2004. He has further submitted that G.O.Ms.No.118, dated 210. 2006 has been issued, notifying the Authorized Officer to issue the provisional and final assessment orders, for theft of energy and to lodge Complaints under Sections 126, 135, 151 and 152 of Indian Electricity Act. 10. The Second Respondent has further submitted that when a fresh assessment notice, dated 26.09.2007 was issued, the Petitioners have challenged the same in W.P.No.36026 of 2007 and this Court, while allowing the said Writ Petition, clearly ordered as follows, “It is open to the Respondents to give proper opportunity in accordance with the Notification issued by the Government on 13.06.2007 and to pass appropriate order. He therefore, submitted that the provisional assessment order under Section 135, r/w. Section 138 of Indian Electricity Act 2003, is valid. He also submitted that the procedure for assessment has been issued in the new Regulation, in particular, Regulations 19-A and 23 with retrospective effect from 01.09.2004 and therefore, the procedure contemplated has been duly followed, while making provisional assessment. 11. The Respondents have further submitted that Central Government, in its Notification G.S.R.379 (E) under Section 176, of Indian Electricity Act has stated that the Police shall take cognizance of an offence punishable under the Act and when Complaints are received in writing from the Competent Authority, they shall investigate in accordance with general law. 11. The Respondents have further submitted that Central Government, in its Notification G.S.R.379 (E) under Section 176, of Indian Electricity Act has stated that the Police shall take cognizance of an offence punishable under the Act and when Complaints are received in writing from the Competent Authority, they shall investigate in accordance with general law. The procedure adopted by the Respondents to determine the Civil liability in terms of money for the theft of energy committed by the Petitioners is valid in law and it is as per T.N.E.R.C./SC/7-4 published in Part VI, Section-2 of Tamil Nadu Government Gazette on 13.06.2007. 12. The Respondents have further submitted that if the Petitioners are desirous of filling any objection, if any against the provisional assessment order, they ought to have sent their explanation to the Second Respondent or choose to Appear in person or through an authorized representative with relevant documents. Further, if any final assessment is passed, an Appeal remedy is provided as per G.O.Ms.No.119, Energy (B) Department, dated 211. 2006. Therefore, the Respondents have submitted that the Writ Petition is liable to be dismissed for not availing the alternative remedy provided under the Act. 13. The Respondents have further submitted that power to make assessment for the financial gain extracted by fraudulent means in a LT service is prescribed under Sections 126, 135 and 138 of the Electricity Act. According to them, the Section would show that the assessment can be made by the prescribed officer, who, in the present case, is the Assistant Executive Engineer (O & M). It is also submitted that if the Special Court determines the final assessment, the amounts already collected should be given credit to and there is also a provision for refund of the excess amount. Therefore, it is submitted that sufficient safeguards have been made in the regulation, prescribing the manner to be adopted by the Competent Authorities. In such a view of the matter, the Respondents have further submitted that notwithstanding the pendency of a Criminal case initiated by the Respondents, for the offence of theft of energy, it is always open to the Assessing Officer to make an independent assessment. Hence, they prayed for dismissal of the Writ Petition. 14. In such a view of the matter, the Respondents have further submitted that notwithstanding the pendency of a Criminal case initiated by the Respondents, for the offence of theft of energy, it is always open to the Assessing Officer to make an independent assessment. Hence, they prayed for dismissal of the Writ Petition. 14. Assailing the impugned order of provisional assessment, learned Counsel for the Petitioners submitted that when the Respondents have initiated proceedings before the Criminal Court for an alleged offence of theft of energy under Sections 126, 135, 151 and 152 of the Indian Electricity Act, they are not competent to presume that the Petitioners have violated the law and hence, the Petitioners are liable to be punished, even before the conclusion of the Criminal proceedings. He further submitted that Section 154(5) of the Electricity Act, 2003, provides powers to the Special Courts to determine the Civil liability in terms of money against the consumers for the alleged theft of energy and that the findings would be a decree. 15. On account of the special features in the enactment, empowering the Special Court to determine the Civil liability and having regard to the Amendment Act 26 of 2007 in sub-section 5 to Section 154, to the effect of substituting the word, “may” into the word, “shall”, the learned Counsel for the Petitioners submitted that when the legislature has substituted the word “may” with “shall”, it is mandatory that the Civil Court alone is Competent to adjudicate both the offence as well as determination of Civil liability based on the evidence made available before the Court. 16. Pointing out that the Special Courts have been constituted pursuant to the Notification, dated 010. 2006, the learned Counsel for the Petitioners submitted that the Third Respondent, is not an authority to initiate action even to make a provisional assessment of Civil liability. Learned Counsel for the Petitioners further submitted that the First Respondent, being a party to W.P. No. 23188 of 2006, dated 010. 2006 and W.P. No. 36026 of 2007, dated 27.03.2008, is bound by the orders made in the above Writ Petition and therefore, he is not empowered to test the order of provisional assessment. 17. Learned Counsel for the Petitioners further submitted that the Respondents have not considered the objections of the Petitioners on the provisional assessment, in proper perspective and therefore, it is arbitrary. 17. Learned Counsel for the Petitioners further submitted that the Respondents have not considered the objections of the Petitioners on the provisional assessment, in proper perspective and therefore, it is arbitrary. It is further submitted that having granted seven days time for submission of his objection on provisional assessment, simultaneously, it is not open to the Respondents to demand payment under the provisional assessment, which only reflects the pre-determined mind of the Respondents, towards quantum as well as liability, when the subject matter is pending before the Criminal Court. 18. Mr. P.S. Raman, learned Advocate General, appearing on behalf of the Respondents invited the attention of this Court to various provisions of the Electricity Act, the Removal of Difficulties Order, 2005, and the provisions of Sections 16 and 23 (aa) of the Regulations issued by the Tamil Nadu Electricity Regulation Committee and notified in Tamil Nadu Gazettee, dated 25.05.2007. He further submitted that earlier, when the notice, dated 23.05.2006, by which, a provisional assessment was made and when the Petitioners was called upon to give objections within one week from the date of the said notice and when the proceedings of the Executive Engineer (First Respondent) were challenged, questioning the authority, this Court, having due regard to the provisions of Electricity of Removal Difficulties Order, 2005, ordered that the moment the method of assessment in the case of electricity charges for the theft of the electricity, pending adjudication of the Criminal Court is laid down, then liberty was given to the Electricity Board to proceed further in accordance with law. 19. 19. He further submitted that though final assessment was made on 26.09.2007, in accordance with the procedure and when the same was tested by this Court in W.P. No. 36026 of 2007, wherein, it was observed that even though it was stated in the Counter Affidavit that the authority is empowered to take action of violation of theft of energy has been notified in the Gazettee, dated 13.06.2007, by enactment of Regulation 23 of the Principal Code, with retrospective effect from 01.09.2004, the said Notification was not placed before this Court and therefore, in such circumstances, this Court came to the conclusion, that it was not known as to how the final order impugned in W.P. No. 36026 came to be passed by the Second Respondent, under Section 135 of the Electricity Act, based on the provisional assessment, dated 23.05.2006 and in such circumstances only, the impugned order was set aside by this Court in W.P. No. 23188 of 2006, dated 110. 2006. 20. Inviting the attention of this Court to Paragraph 9 of W.P. No. 23188 of 2006, dated 110. 2006 and the Regulations 16 and 23(aa) framed by the Tamil Nadu Electricity Regulatory Committee, the Notification, dated 25.05.2007 and the Gazettee Notification, dated 13.06.2007, learned Advocate General further submitted that no show cause notice is contemplated before any provisional assessment is made. While determining the Civil liability of the consumer in case of theft of electricity, pending adjudication of the offence before the Criminal Court. 21. Learned Advocate General further submitted that once the procedure and method of assessment of electricity charges in case of theft of electricity, pending adjudication of the Criminal Court is laid down by the Government by Removal of Difficulties Order and sufficient regulations were also issued by the Competent Authority, viz., Tamil Nadu Electricity Regulatory Commission and which has notified the prescribing authority, then it is not open to the Petitioners to contend that there is any difficulty in assessing the Civil liability, in matters where the Criminal Court has taken cognizance of the offences committed by the consumer. 22. Inviting the attention of this Court to the impugned order, he submitted that a fresh provisional assessment has been made by the Competent authority, in terms of Regulations in Tamil Nadu Electricity Supply Code and that the Working Sheet has also been given to the Petitioners. 22. Inviting the attention of this Court to the impugned order, he submitted that a fresh provisional assessment has been made by the Competent authority, in terms of Regulations in Tamil Nadu Electricity Supply Code and that the Working Sheet has also been given to the Petitioners. He further submitted that the amount quantified in the provisional assessment has to be paid within seven days from the date of the order and that the Petitioners are also given liberty to make their objections against the provisional assessment. For the above said reasons, he submitted that the provisional assessment has been made in accordance with the statutory provisions and that there is no illegality, warranting interference. Hence, prayed for dismissal of the Writ Petition. 23. Heard the learned Counsel for the parties and perused the materials available on record. Before adverting to the facts of this case, it is relevant to extract few provisions from the Electricity Act, 2003, which has come into force with effect from 10.06.2003. Act 36 of 2003 is intended to consolidate the laws, relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conductive to the development of electricity industry promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies, constitution of Central Electricity Authority, Regulatory Commission and establishment of Appellate Tribunal and for matters connected therewith and incidental thereto. 24. As per Section 50, the State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges disconnection of supply of electricity for non-payment thereof; restoration of supply of electricity; tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter; entry for replacing, altering or maintaining electric lines or electrical plant or meter. 25. As per Section 82, every State Government shall, within six months from the appointed date, by Notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission. 26. Part XII of the Act deals with the investigation and enforcement. 25. As per Section 82, every State Government shall, within six months from the appointed date, by Notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission. 26. Part XII of the Act deals with the investigation and enforcement. Section 126 of the Act deals with the assessment of electricity charges and it reads as follows: “(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 unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom a notice has been served under sub-section(2) shall be entitled to file objections, if any, against the provisional assessment before the Assessing Officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of 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: Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever.” 27. Part XIV of the Act deals with Offences and Penalties. Section 135 of the Act deals with theft of electricity. Section 136 defines theft of electric lines and materials. As per Section 151 of the Act, no Court shall take cognizance of an offence punishable under this Act except upon a Complaint made in writing made by the appropriate Government or appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating Company, as the case may be, for this purpose. 28. 28. As per Section 152(1) of the Act, notwithstanding anything contained in the Code of Criminal Procedure 1973, the appropriate Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act a sum of money by way of compounding of the offence, specified in the table given in the said provision. 29. Part XV of the Act deals with constitution of Special Courts. As per Section 153(1) of the Act, the State Government may, for the purposes of providing speedy trial of offences referred to in Sections 135 to 139, by Notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the Notification. 30. Section 154 of the Act deals with the procedure and powers of the Special Courts. As per sub-section (5) to Section 154 of the Act, the Special Court may determine the Civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined which ever is less and the amount of Civil liability so determined shall be recovered as if it were a decree of Civil Court. 31. As per sub-section (6), to Section 154 of the Act, in case, the Civil liability so determined finally by the Special Court is less that the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India, prime lending rate for the period from the date of such deposit till the date of payment. For the purposes of this Section, “Civil liability” means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in Sections 135 to 139. 32. Section 156, empowers the High Court to exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, as if the Special Court within the local limits of the jurisdiction of the High Court is a District Court, or as the case may be, the Court of Sessions, trying cases within the local limits of jurisdiction of the High Court. 33. Section 177 of the Act empowers the authority to make regulations and it reads as follows: ‘(1) Authority may, by Notification, make Regulations consistent with this Act and the Rules generally to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power conferred in subsection (1), such Regulations may provide for all or any of the following matters, namely:- (a) the Grid Standards under Section 34; (b) suitable measures relating to safety and electric supply under Section 53; (c) the installation and operation of meters under Section 55; (d) the rules of procedure for transaction of business under sub-section (9) of Section 70; (e) the technical standards for construction of electrical plants and electric lines and connectivity to the grid under clause (b) of Section 73; (f) the form and manner in which and the time at which the State Government and licensees shall furnish statistics, returns or other information under Section 74; any other matter which is to be, or may be, specified;” 34. Section 181 of the Act empowers the State Commission, by Notification, to make Regulations consistent with this Act and the Rules generally to carry out the provisions of this Act. If any difficulty arises in giving effect to the provisions of this Act, the Central Government is empowered, by publishing an order, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty. If any difficulty arises in giving effect to the provisions of this Act, the Central Government is empowered, by publishing an order, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty. When certain difficulties were expressed in giving effect to the provisions of the Act, the Central Government in accordance with Section 183 of the Act, published Electricity (Removal of Difficulties) Order, 2005, vide S.O.790 (E), in the Gazette of India Extraordinary, Part II, Section 3(ii), dated 08.05.2005, which reads as follows: “And whereas Section 50 of the Act provides that the State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plant or meter; And whereas the distribution licensees have expressed difficulties in controlling theft of electricity and in taking appropriate action in this regard; And whereas enabling the distribution licensees for taking timely and appropriate action in cases of theft or diversion of electricity has become necessary for the development of electricity industry and ensuring supply of electricity to all areas; And whereas taking measures conducive to development of electricity industry and supply of electricity to all areas are objectives, amongst others, of the Act, as stated in its preamble; And whereas the difficulties have arisen in giving effect to the provisions of the Act in controlling theft of electricity by the distribution licensees; Now, therefore, the Central Government, in exercise of its powers conferred by Section 183 of the Act hereby makes the following order in respect of electricity supply code in terms of Section 50 of the Act, not inconsistent with the provisions of the Act, to remove the difficulties, namely.- 1. Short title and commencement.- (1) This order may be called the Electricity (Removal of Difficulties) order, 2005. (2) It shall come into force on the date of publication in the Official Gazette. 2. Short title and commencement.- (1) This order may be called the Electricity (Removal of Difficulties) order, 2005. (2) It shall come into force on the date of publication in the Official Gazette. 2. Inclusions of measures to control theft in Electricity Supply Code.- (1) The Electricity Supply Code as specified by the State Commission under Section 50 of the Act shall also include the following, namely:- (i) method of assessment of the electricity charges payable in case of theft of electricity pending adjudication by the appropriate Court; (ii) disconnection of supply of electricity and removing the meter, electric line, electric plant and other apparatus in case of theft or unauthorized use of electricity; and (iii) measures to prevent diversion of electricity, theft or unauthorized use of electricity or tempering, distress or damage to electrical plant, electric lines or meter. (2) The above provisions in the Electricity Supply Code shall be without prejudice to other rights of the licensee under the Act or any other applicable laws to recover the sum due and to protect the assets and interests of the licensee.” 35. While allowing W.P.No.23188 of 2006, dated 19.06.2006, this Court quashed the provisional assessment, dated 23.05.2006, of the Assistant Executive Engineer (Operation and Maintenance), Coimbatore Distribution Circle (Tamil Nadu Electricity Board) and the Letter, dated 19.06.2006, of the Executive Engineer (Distribution), Tamil Nadu Electricity Board, Palladam, fixing an enquiry. Though this Court has noticed the introduction of Electricity (Removal of Difficulties) Order, 2005 and on examination of the materials produced, this Court has found that recourse cannot be had to an assessment under Section 126 of the Act, in the absence of any prosecution or method of assessment. Therefore, in such circumstances, while quashing the orders stated supra, consciously observed that if the method of assessment of electricity charges in the case of theft of electricity, pending adjudication of the Criminal Court is laid down, then the orders passed in the above Writ Petition would not stand in the way to the Respondents to take such action as is necessary and in accordance with law. 36. 36. When the Tamil Nadu Electricity Board expressed certain difficulties in implementing certain provisions of the Regulations and in particular in implementing the provisions relating to assessment and disconnection of supply, in case of theft of electricity and in cases of unauthorised use of electricity, in the absence of specific procedures to this effect in the Tamil nadu Electricity Supply Code and having regard to the Notification of the Central Government in S.O.790 (E), Electricity (Removal of Difficulties) Order, 2005, decide to include the following in the Electricity Supply Code: “(i) Methods of assessment of the electricity charges payable in case of theft of electricity pending adjudication by the appropriate Court; (ii) Disconnection of supply of electricity and removing the meter, cables lines, electric plant and other apparatus in case of theft or unauthorized use of electricity; and (iii) Measures to prevent diversion of electricity, theft or unauthorized use of electricity or tempering, distress or damage of electrical plant, electric lines or meter.” 37. The Tamil Nadu Electricity Regulatory Commission, in exercise of his powers conferred on it, by Section 181 read with Section 50 of the Electricity Act, 2003 (Central Act 36 of 2003) and other powers enabling the Commission in this behalf, has made Regulation, viz., Tamil Nadu Electricity Supply (Amendment) Code, 2007, amending the Electricity Supply Code, (referred to as “Principal Code”). Thus, the regulations have been notified by the State Commission in No.T.N.E.R.C./SC/7-4, dated 25.05.2007. Regulation 1(b) of the Notification, states that,- “(b) These regulations except Regulations 14 and 16 shall come into force on the date of their publication in the Tamil Nadu Government Gazette.” 38. As per Regulation No.14 of the amendment in the Notification, a new Regulation 19A has been inserted, after Regulation 19 of the Principal Code and it reads as follows: “19-A. Procedure for disconnection of supply of electricity and removal of the unauthorized usage of electricity.- (1) An Assessing Officer mentioned under Section 126 of the Act, may either suo motu or on receipt of reliable information regarding unauthorized use of electricity in any premises conduct inspection of such premises. (2) The Assessing Officer shall prepare a report giving details such as connected load, condition of seals, working of meter and record any irregularity noticed/unauthorized use of electricity found. (2) The Assessing Officer shall prepare a report giving details such as connected load, condition of seals, working of meter and record any irregularity noticed/unauthorized use of electricity found. (3) The report referred to in sub-regulation (2) shall clearly indicate whether conclusive evidence substantiating the fact that unauthorized use of electricity was found or not. The details of such evidence should be recorded in the report. (4) In case of suspected unauthorised use of electricity, provisional assessment order shall be issued in the manner prescribed under the rules made by the State Government under Section 126(2) of the Act and final assessment order shall be issued by the Assessment Officer by following the procedure stipulated in Section 126 of the Act. In respect of a tariff where different rates are adopted based on the slabs of consumption, the highest tariff rate specified in the tariff structure for the relevant category of service may be adopted. (5) If the person does not deposit the assessed amount with the licensee concerned as stipulated under sub-section (4) of Section 126 of the Act, the licensee concerned may proceed to recover such assessed amount and take such further action as is permitted under the Act. (6) The enforcement provisions of the Act and the procedures given in this Code shall be followed to recover the assessed amount from the person. In case of default in payment of the assessed amount, including default in payment of any of the installment permitted by the licensee concerned and agreed by the person, the licensee concerned may, after giving a fifteen day’s notice in writing disconnect the supply of electricity. (7) The person shall remove the cause of unauthorized use immediately after its detection and give a written intimation to the licensee concerned. The licensee concerned shall check the claim of the person about the removal of the cause of unauthorized use of electricity, verified to his satisfaction. Failure of the person to remove the cause of unauthorized use shall result in levy of charges on account of unauthorized use of electricity till the cause of such unauthorized use of electricity is removed and verified and recorded by the licensee concerned or the onus of allegation of unauthorized use of electricity is rebutted by the person and accepted by the licensee concerned.” 39. Similarly, as per Regulation 16 of the amended Code, 2007, Regulation 23 of the Principal Code has been amended, which sets out the detailed procedure to be followed while making assessment in respect of theft of energy. 40. Tamil Nadu Electricity Supply (Amendment) Code, 2007, dated 25.05.2007, has been published in Government Gazette on 01.09.2004 and all the regulations. Except 14 and 16, have come into force on the date of publication in the Tamil Nadu Government Gazette, i.e., 01.09.2004. To be more specific, Regulations 14 and 16 have been given retrospective effect from 01.09.2004. As per the new Regulation 19-A (1) and (2), an assessing officer mentioned under Section 126 of the Act, may either suo motu or on receipt of reliable information regarding unauthorized use of electricity in any premises, conduct inspection of such premises. In case of suspected unauthorised use of electricity, provisional assessment order shall be issued in the manner prescribed under the Rules made by the State Government under Section 126(2) of the Act. And final assessment order shall be issued by the Assessment Officer by the Assistant Executive Officer, by following the procedure stipulated in Section 126 of the Act. 41. Regulation 23-AA sets out the procedure for assessment of Electricity charges, disconnection of supply of electricity and removal of meter, electric line, electric plant and other apparatus in case of theft of electricity and measures to prevent diversion of electricity, theft or unauthorized use of electricity or tempering, distress or damage to electrical plant, electric lines or meter. New Regulation 23-AA (8) states as follows: “(8) Within five days of inspection, the Authorized Officer shall serve on the accused person, provisional assessment order in the Form 9 in Appendix to this Code for the charges for the theft of electricity based on the evidence recorded during the course of inspection. The order should clearly state the time, date and place at which the reply has to be submitted and the designation/address of the officer to whom it should be addressed. The accused person shall be required to submit his representation within seven days of issue of the provisional assessment order.” 42. Reading of the new Regulation 19-A and 23-AA, as inserted in Principal Code, makes it clear that a comprehensive procedure has been set out for assessment of electricity charges, electric line, electric plant and other apparatus, in case of theft of electricity. Reading of the new Regulation 19-A and 23-AA, as inserted in Principal Code, makes it clear that a comprehensive procedure has been set out for assessment of electricity charges, electric line, electric plant and other apparatus, in case of theft of electricity. It is evident from the Counter Affidavit that an Authorised Officer has been notified under G.O.Ms.No.118, dated 210. 2006 to issue provisional and final assessment orders, for theft of energy cases and to lodge Complaints under Sections 126, 135, 151 and 152 of Indian Electricity Act. 43. Materials on record shows that by Lr.No.AEE/Karardivavi/F.SC.402 Kallapalayam/D. No.336 of 2007, dated 26.09.2007, the Assistant Executive Officer (O & M) C.E.D.C. (South), Tamil Nadu Electricity Board, Karardivavi, Second Respondent herein, has issued orders of final assessment, directing the Petitioner to pay a sum of Rs.30,96,082/- in accordance with the Regulations of the Tamil Nadu Electricity Supply Code, by enclosing a copy of the working sheet. The said proceeding was again challenged before this Court in W.P.No.36026 of 2007. While examing the said order, a learned Single Judge of the Court has found that the impugned order of assessment, dated 26.09.2007, had been made by the Second Respondent under Section 135 of the Electricity Act in furtherance of a provisional order, dated 23.05.2006, which was already set aside by this Court in W.P.No.23188 of 2006. Though the Respondent therein in W.P.No.36026 of 2007 in the Counter Affidavit have contended that the Removal of Difficulties in the procedure of assessment and that a Competent Authority to assass the value of theft of energy had already been notified in TNERC/SC/7-4, dated 25. 2007 and published in Government Gazette, dated 16. 2008, whereby, new Regulations 19-A and 23 of the Principal code have been inserted with retrospective effect from 9. 2004, unfortunately, the said Notification has not been placed before this Court, when the Said Writ Petition was heard and in such circumstances, this Court, by observing that,- “it is not known as to how the final assessment order which is impugned in this Writ Proceeding can be passed by the Second Respondent under Section 135 of the Electricity Act, 2003 based on the provisional assessment, dated 23.05.2006, issued by the Third Respondent in Vu.Se.Po/E&Pe/Ka.Vavi/Va.Aa/ Ko.Min/Thiruttu/Aa.No.180/2006, which was set aside by this Court, by order, dated 10. 2006 and without giving any fresh notice to the Petitioner, has quashed the impugned order therein.” 44. 2006 and without giving any fresh notice to the Petitioner, has quashed the impugned order therein.” 44. While quashing the final assessment in respect of the Petitioner, the learned Single Judge, has passed the following order: “9. In such circumstances, when admittedly Section 135 relates to theft of electricity and Section 126 relates to unauthorized use of electricity, it is not acceptable that even before the Criminal liability of theft is concluded as per Section 135 of the Act, any final assessment can be made without giving notice to the Petitioners and giving opportunity to explain. In view of the same and on the ground that before making the provisional assessment into final order which is impugned in this Writ Petition, no show cause notice was issued to the Petitioners, the impugned order is set aside. It is open to the Respondents to give proper opportunity in accordance with the Notification issued by the Government on 16. 2007 and pass appropriate orders.” 45. Reverting back to the present case, learned Counsel for the Petitioner has placed strong reliance on the word “shall” employed in Section 154(5) of the electricity act and contended that only the Special Court constituted under Section 153 of the act, has jurisdiction to decide the Civil liability against a consumer or a person in terms of money for theft of energy. 46. Material on record shows that Parliament in its wisdom has thought it fit to leave certain matters to the Executive under Section 181 of the Act to remove the difficulties in giving effect to the provisions of the Act. In exercise of the such powers, the Central Government have notified as follows: “(i) Methods of assessment of the electricity charges payable in case of theft of electricity pending adjudication by the appropriate court; (ii) Disconnection of supply of electricity and removing the meter, cables lines, electric plant and other apparatus in case of theft or unauthorized use of electricity; and (iii) Measures to prevent diversion of electricity, theft or unauthorized us of electricity or tempering, distress or damage of electrical plant, electric lines or meter.” 47. The Central Government has notified S.O.790 (E), Electricity (Removal of Difficulties) Order, 2005, to include among other things in Electricity Supply Act, the method of assessment of electricity charges payable in case of theft of electricity pending adjudication before the competent Court. The Central Government has notified S.O.790 (E), Electricity (Removal of Difficulties) Order, 2005, to include among other things in Electricity Supply Act, the method of assessment of electricity charges payable in case of theft of electricity pending adjudication before the competent Court. Once the powers to remove the difficulties have been conferred on the authorities and published, it does not have any effect of modifying Section 154(5) of the Act. Whereas, the said Section can continue to operate simultaneously, along with new Regulations 19-A and 23-AA issued by the Tamil Nadu Electricity Regulatory Commission, dated 25.05.2007 and published by the Government, in the Gazette on 13.07.2006. Once the regulations are issued by the State Government, it fills up the deficiency in the statute and both Section 154(5) of the Act, as well as above said Regulations in the Tamil Nadu Electricity Supply Code can operate simultaneously. 48. Thus, it is evident from Section 154(6) of the Act that in case of Civil liability, so determined finally by the Special Court is less than the amount deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. For the purposes of this section, “Civil liability” has been explained to mean loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in Sections 135 to 139. 49. Under the new Regulation 23-AA of the Tamil Nadu Electricity Regulatory Commission, procedures are set out for assessment of the Electricity charges, disconnection of supply of electricity and removing the meter, electric line, electric plant and other apparatus in the case of theft of electricity. 49. Under the new Regulation 23-AA of the Tamil Nadu Electricity Regulatory Commission, procedures are set out for assessment of the Electricity charges, disconnection of supply of electricity and removing the meter, electric line, electric plant and other apparatus in the case of theft of electricity. Some of the relevant provisions adopted in case of theft of electricity are as follows: “(1) The officer authorized under sub-section (2) of Section 135 of the Act (hereinafter referred to as the Authorized Officer), may either suo-motu or on receipt of reliable information regarding theft of electricity in any premises, conduct inspection of such place or premises. (The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act). (7) Where it is established that there is a case of theft of energy, the Authorized Officer shall assess the quantum of energy consumption for the past twelve months as per the assessment formula given in Form 8 in Appendix to this Code and prepare provisional assessment order for the charges for such consumption at two times of the tariff applicable (i.e. the applicable tariff for the purpose for which the pilfered energy was used) and serve on the accused person under proper receipt. The Authorized Officer may reduce the period for such billing if it is established by the facts or documents submitted in the representation of the accused person or any such other evidence observed by the Authorized Officer. Wherever electronic meters are installed and the load curves are studied periodically, the period of theft could be limited to the exact period as could be determined scientifically. The Authorized Officer shall record reasons for such reduction in the period of billing, in the assessment order. The energy consumption arrived at as per the formula referred to in the said Form 8 will be charged excluding the energy consumption recorded by the meter as per the rates specified by the Commission’s Tariff Order. (8) Within five days of inspection, the Authorized Officer shall serve on the accused person, provisional assessment order in the Form 9 in Appendix to this Code for the charges for the theft of electricity, based on the evidence recorded during the course of inspection. (8) Within five days of inspection, the Authorized Officer shall serve on the accused person, provisional assessment order in the Form 9 in Appendix to this Code for the charges for the theft of electricity, based on the evidence recorded during the course of inspection. The order should clearly state the time, date and place at which the reply has to be submitted and the designation/address of the officer to whom it should be addressed. The accused person should submit his representation, within seven days of issue of the provisional assessment order. In case, the accused person does not respond to the provisional assessment order within 7 working days, the licensee concerned may proceed to initiate recovery against the provisional assessment order. (12)Within seven working days from the date of submission of such accused person’s reply, if made within the seven working days from the date of receipt of provisional assessment order, the Authorized Officer shall arrange a personal hearing with such accused person. For this purpose the Authorized Officer shall serve a three days notice to such accused person to allow him for a personal hearing and shall also allow any additional submission of new facts or documents if any, during the course of hearing by such accused person. If such accused person does not respond to the notice in the matter, the Authorized Officer shall proceed to issue the final assessment order, as per the procedure specified in the Code. (13) Before the personal hearing, the Authorized Officer before whom personal hearing shall be conducted, shall analyze the case after carefully considering all the documents, submissions by the accused person, facts on record and the consumption pattern, whatever available. (14) The Authorized Officer shall also compute the quantum of energy consumption for the past twelve months. The Assessment Officer may study the energy consumption pattern of the Service Connection concerned for the past one year or more. If necessary, it may also be compared with the load/production pattern or output of the service connection. In case of suspected theft, if consumption pattern is commensurate with the assessed consumption or in case of the decision that the case of suspected theft is not established, no further proceedings shall be taken and the decision shall be communicated to the accused person under proper receipt within three working days. In case of suspected theft, if consumption pattern is commensurate with the assessed consumption or in case of the decision that the case of suspected theft is not established, no further proceedings shall be taken and the decision shall be communicated to the accused person under proper receipt within three working days. (15) Considering the facts submitted by the accused person the Authorized Officer shall pass, within seven working days from the date of enquiry, a final assessment order in Form 10 in Appendix to this code If the accused person does not respond to the personal hearing, the Authorised Officer shall issue a final assessment order within fifteen days from the issuance of provisional assessment order. Final assessment order shall contain a brief of inspection report, submissions made by accused person in his written reply as well as during his personal hearing and reasons for acceptance or rejection of the same and the assessment charges as per sub-regulation (12). In the final assessment order, charges, if any, paid by the accused person during the period for which the assessment is done shall be duly credited, if warranted, to avoid duplication of billing for such period. (16) The accused person shall be required to make the payment within seven working days of receipt of final assessment order. (20) If the accused person does not make payment, the licensee concerned may proceed to recover its dues against such order and take such further action as is permitted under the Act.” 50. As per sub-section (3) of Section 126 of the Act, 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. Sub-Section (4) of Section 126 states that any person served with an 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. 51. Sub-Section (4) of Section 126 states that any person served with an 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. 51. A conjoint reading of the statutory provisions as well as the Electricity Supply Code, which prescribes the procedure for assessment of electricity charges, etc., shows that there is no inconsistent or incongruity between them. Both the statutory provisions as well as the Code, enable the accused person to make the payment of the provisional assessment, if he is agreeable, within seven days from the date of receipt of notice. In case, the accused person is desirous of filing objections, if any, against the provisional assessment, he may send his explanation to the Assessment Officer, within seven days from the date of receipt of the provisional assessment order. 52. As regards the contention of the Petitioners that the Second Respondent is not an Authorised Officer, contemplated under the Regulation as well as under Section 126(2) of the Act, it could be seen from the Regulation 23-AA of the Tamil Nadu Electricity Supply Code, the officer authorized under sub-section (2) of Section 135 of the Act (hereinafter referred to as the Authorized Officer), is Competent to make a provisional assessment. According to the Respondents, the Second Respondent is empowered to pass provisional assessment order and therefore, the contentions to the contra, cannot be countenanced. 53. As regards the last contention that the provisional assessment has been made without due notice to the Petitioners, neither the statutory provisions nor the Tamil Nadu Electricity Supply (Principal) Code or Tamil Nadu Electricity Supply (Amendment) Code, 2007, mandate a show cause notice to be given to the accused person before making the provisional assessment. The Petitioners, who has committed an offence, punishable under the Electricity Act is liable to pay the loss or damage caused by him to the Electricity Board and he cannot expect to have any prior notice before the provisional assessment. However, both the statute as well as the amendment Code enables the accused person to submit his representation, within seven days of issue of provisional assessment order. 54. However, both the statute as well as the amendment Code enables the accused person to submit his representation, within seven days of issue of provisional assessment order. 54. When Section 50 of the Electricity Act, 2003, does not confer any right on the accused person, to have an opportunity of hearing before passing of an order of provisional assessment is made, the Petitioners cannot demand the same, as a matter of right and that would be amounting to adding words to the statutory provisions, which is not permissible under law. 55. Reverting back to the facts of this case, it could be seen from the impugned order that after an inspection made by the Authorised Officer, in which, an offence of theft of energy was found to have been committed by tampering of seals, sealing wires in the seals found cut, etc., the Petitioners were provisionally assessed to a loss of Rs.30,96,082/- in accordance with the Regulations of the Tamil Nadu Electricity Supply Code and a Working Sheet has also been enclosed. The Petitioners were given sufficient opportunity to submit their representations to the provisional assessment order or to submit their objections, if any, within seven days from the date of receipt of the order. 56. As stated supra, the statutory provision under Section 154(5), enabling the Special Court to determine the Civil liability, can simultaneously operate along with the Regulation of the Tamil Nadu Electricity Supply Code, pursuant to the introduction of the Electricity (Removal of difficulties) Order, 2005. Prohibition contained in Section prior to the introduction of the Electricity (Removal of difficulties) Order, 2005, that the Criminal Court of Competent jurisdiction, which has taken cognizance of theft alone, is empowered to determine the Civil liability under the Act has been removed and in such an event, it is not open to the Petitioners to contend that the Authorised Officer under the Statute, read with the Regulations framed by the Tamil Nadu Electricity Regulatory Commission, dated 25.05.2007 and published by the Government in the Gazette on 13.07.2006, has no authority to make a provisional assessment. If the contentions of the Petitioners were to be accepted, then the introduction of Electricity (Removal of difficulties) Order, 2005, and the consequent Regulation to the Tamil Nadu Electricity Supply (Amendment) Code, 2007, would only remain in letter and that is not the intention of the Central Government. If the contentions of the Petitioners were to be accepted, then the introduction of Electricity (Removal of difficulties) Order, 2005, and the consequent Regulation to the Tamil Nadu Electricity Supply (Amendment) Code, 2007, would only remain in letter and that is not the intention of the Central Government. The Electricity (Removal of difficulties) Order, 2005 and the Regulations have to be read in conjunction with each other and the provisions of the Act cannot be read in isolation. 57. In view of the above, I do not find that there is any manifest illegality in the impugned order and the same is in accordance with the statutory provision and within the jurisdiction of authority of the Authorized Officer, viz., the Second Respondent. 58. In the result, the Writ Petition is dismissed. No costs.