JUDGMENT Mr. K. Kannan, J.: - The petitioner-Company seeks for quashing the order dated 15.10.2010, causing disconnection to the premises of the petitioner- Company and demanding Rs.4,33,24,039/- as the amount payable on account of alleged theft of electricity. The petition also contains a prayer for quashing the reply filed in the contempt petition vide Annexure P-9. Consequent to the main relief, the petitioner seeks for restoration of electricity. 2. The order impugned in the writ petition on 15.10.2010 is said to be a provisional order of assessment on a finding of theft of electricity and after the filing of the writ petition, the learned counsel for the respondents states that a final order of assessment has been made and served on the petitioner on 26.7.2011. According to him, the writ petition itself is not maintainable and the final assessment order could be challenged by means of an appeal. I specifically put it to the counsel if he would amend the prayer to challenge the final assessment order itself but the counsel for the petitioner stated that the decision taken as regards the order of a provisional assessment is merely reiterated with no better consideration and without reference to the objections filed already against the provisional assessment and since it was an event subsequent to the filing of the writ petition, there was no necessity for having to amend the prayer in the writ petition. 3. Since the counsel for the respondents took the issue of an alternative remedy as available by means of an appeal, I had directed the counsel for the petitioner also to argue the point whether the writ petition could be maintained without exhausting statutory remedy of appeal. 4. The learned counsel for the petitioner states that an order of assessment which is contemplated under Section 126 is different from the provision relating to theft of electricity under Section 135. While the order of provisional assessment contemplated under Section 126(1) that leads to a final assessment under Section 126(3) is appealable under Section 127, there is no provision preferring an appeal against the assessment based on theft of electricity defined under Section 135. While the order of provisional assessment contemplated under Section 126(1) that leads to a final assessment under Section 126(3) is appealable under Section 127, there is no provision preferring an appeal against the assessment based on theft of electricity defined under Section 135. The counsel for the respondents contests this interpretation and refers to a judgment of this Court recently rendered in M/s R.K. Weld Pvt. Ltd. Versus Punjab State Electricity Board and others in [2011(2) Law Herald (P&H) 1751] : CWP No.4528 of 2010, decided on 30.05.2011. 5. There is no denying the fact that the order dated 15.10.2010 specifically refers to the assessment as provisional. As a matter of fact, the petitioner himself has given his objection to this notice and when no decision had been taken, he had filed a writ petition in CWP No.1455 of 2011, challenging the order dated 15.10.2010. This Court had directed the respondents 2 to 4 in the writ petition to dispose of the representation setting forth the objections given by the petitioner to be disposed of within a period of one month. This direction for disposal of representation must be understood in the context of the levy being provisional and how the Electricity Act itself provides for passing a final order after hearing the objections. Although this Court has directed the representation to be disposed of, I would treat this as a direction to pass a final order of assessment within 30 days as contemplated under Section 126(3). Admittedly, till the time when the writ petition was filed, the order had not been passed and the petitioner again filed the instant writ petition challenging the provisional order of assessment. The immediate precipitating factor for the writ petition was when the final assessment was not made in the manner directed by the decision of this Court on 03.02.2011, the petitioner appears to have filed a contempt action in COCP No.602 of 2011 and the respondents are purported to have been filed a reply, affirming the decision taken already on 15.10.2010. The disconnection effected continued and with no final decision having been taken, the petitioner has again approached this Court. According to the petitioner, the institution of the petition was literally forced on the petitioner by the unreasonable conduct of the respondents in not taking a decision and allowing the factory to remain closed for want of power. The disconnection effected continued and with no final decision having been taken, the petitioner has again approached this Court. According to the petitioner, the institution of the petition was literally forced on the petitioner by the unreasonable conduct of the respondents in not taking a decision and allowing the factory to remain closed for want of power. We have therefore a strange situation of the petitioner coming to Court for the same relief of what was sought in the earlier petition for quashing the provisional order of assessment and to quash the objections filed in the Contempt Petition. The counsel for the respondents even denies that the counter filed as Annexure P-9 was even filed in Court. It is not possible to comprehend the prayer as to how an objection alleged to have been filed in court could be asked to be quashed, when at best, it could be argued in the Contempt Petition itself that the objection is not true or that it is required to be rejected. 6. If the notice dated 15.10.2010 must be taken as provisional demand, the ultimate decision made on 26th July, 2011 must only be taken as an order under Section 126(3) which is appealable under Section 127. A demand made and the assessment rendered on the basis that there was a theft of electricity does not make it an order passed under Section 135 as canvassed by the counsel for the petitioner. This is so because Section 126(1) contemplates a provisional conclusion that the petitioner was indulging in unauthorized use of electricity (emphasis supplied). The said clause is reproduced 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 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.” 7. The unauthorized use of electricity is defined under Section 126(6), Explanation (b), is reproduced hereunder:- “Explanation.-For the purposes of this Section,- (a) ......... The unauthorized use of electricity is defined under Section 126(6), Explanation (b), is reproduced hereunder:- “Explanation.-For the purposes of this Section,- (a) ......... (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 supplied) Theft of electricity as defined under Section 135 includes five different ways that would constitute theft and for our purpose, clauses (b) and (d) would obtain relevance. The said clauses are reproduced as under:- 135. Theft of electricity.- (1) Whoever, dishonestly, -- (a) ................. (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) ................ (d) uses electricity through a tampered meter; or (e) .................” (emphasis supplied) 8. An use of electricity through a tampered meter which would constitute a theft of electricity is still an “unauthorized use” of electricity under Section 126(6) which will give rise to an investigation of provisional assessment and a final assessment respectively under Section 126(1)(2) and (3). The final assessment although made on allegation of theft of electricity is definitely appealable under Section 127. The final order of assessment as conveyed in Court is bound to be appealable against, if a person is aggrieved, under Section 127. The writ petition is not an efficacious remedy where the petitioner urges the issues on points of facts. 9. Since I have allowed the counsel to argue substantially on merits, it shall be my duty to enumerate only the facts so that an adjudication shall direct its focus on the points urged before me, if an appeal is filed by the petitioner. The main argument of the learned counsel was that at no point of time was there even a least of suspicions that there had been a tampering with the seal of the meter. What was noticed on earlier dates was “lass wire” (sic) had been found rusted and not in any way tampered. The main argument of the learned counsel was that at no point of time was there even a least of suspicions that there had been a tampering with the seal of the meter. What was noticed on earlier dates was “lass wire” (sic) had been found rusted and not in any way tampered. The meter was replaced on 25.08.2009 and it had not been sent to the lab immediately but the first notice of the dispatch to the lab was made on 13.10.2010 and the actual checking was done on 14.10.2010. The report which was drawn up on 15.10.2010 made a false inference of tampering with the meter. According to the petitioner, the meter that was taken for replacement on 25.08.2009 had not been retained in the same state but the seal had been opened on 31.08.2009 without any notice to the petitioner. The alleged checking for data downloading on 31.8.2009 was not done in the presence of the petitioner or his representative. The contention to the contrary by the respondent was not true. The counsel for the petitioner would point out that there is significantly no reference to the name of the representative of the petitioner who was alleged to be present on 31.8.2009 in the pleadings at any point of time before this Court. It was stated only now for the first time before Court that one Tarsem Singh had signed in acknowledgment of the fact that the card board box was opened and the seal was removed at the time of checking on 31.08.2009. The petitioner would also file the affidavit of Tarsem Singh and the Director of the Company that neither of them was present at the time when the alleged inspection was done on 31.08.2009. 10. The learned counsel for the respondents would say that the petitioner’s representative was present and had signed the inspection note and that was why, he had not stated any objection at the time when the meter was taken for lab inspection on 14.10.2010. Prima facie, this contention of the respondents seems suspect, for, there was no way by which the petitioner could have known that the card board box was going to be removed and inspected again for data downloading on 31.08.2009. Prima facie, this contention of the respondents seems suspect, for, there was no way by which the petitioner could have known that the card board box was going to be removed and inspected again for data downloading on 31.08.2009. It is again inexplicable as to how Tarsem Singh could have materialized at spot to be present without being in any way informed prior in point of time that such an exercise was going to be undertaken by the Electricity Board. I state this point although I have not considered the case on merits only because I am of the view that when I am remitting the matter giving the liberty to the petitioner to prefer an appeal, I do so, not because this Court could not have exercised jurisdiction under Article 226 of the Constitution even when there was an alternative remedy. Exceptions have always been carved out to see that gross injustice is not done. The resort to a writ petition itself was not unjustified in a situation where the Electricity Board had caused the disconnection immediately after the report on 15.10.2010 but had not passed a final assessment and kept the party in tenterhooks. Even when the Contempt Petition had been filed, it could have been possible for the Electricity Board to take the permission of the Court and immediately passed an order. On the other hand, the Electricity Board declared its intent in affirming that everything of what was stated that in the provisional notice was fair and appropriate. It was this reply which had forced the petitioner to file the writ petition making an inference that the respondents had closed their mind and a final assessment could not have been any different. When the final assessment is made, I have no doubt that it became a mere empty formality to affirming the provisional order and the Electricity Board did not have an open mind to consider the objections to the provisional assessment. The petitioner’s counsel also argues that the consumption during the period of alleged use of tampered meter was even higher than the electric consumption post 25.8.2009 when a new meter had been installed. The tampering, if at all, could have been only to derive a benefit and such a benefit surely did not exist. The petitioner’s counsel also argues that the consumption during the period of alleged use of tampered meter was even higher than the electric consumption post 25.8.2009 when a new meter had been installed. The tampering, if at all, could have been only to derive a benefit and such a benefit surely did not exist. The counsel for the respondents, however, states that the factory was not running well and was sick and without giving evidence about the standard of operations during the relevant time, it would not be possible to see if the petitioner obtained any benefit. According to him, the issue of benefit itself was irrelevant for considering the issue whether there had been tampering or not. 11. What I would hold out against the Electricity Board for the officer, who passed the provisional order of assessment and later affirmed through the final order dated 26.7.2011 without adverting to objections given by the petitioner, I have no reason to suspect that a similar fate shall befall to the petitioner before the Appellate Authority. The Appellate Authority is constituted as a statutory body and, therefore, it will only be appropriate that the statutory authority takes a decision uninfluenced by the manner in which the final assessment has been made. There are serious issues of facts for consideration. I will outline the fundamental issues raised by the petitioner for the appellate authority to stay in focus on :(i) the “lass wire” was not found to be broken, it was only found rusted; (ii) Prima facie, the removal of the meter from the card board box on 31.08.2009 had not been done in the presence of the petitioner or his representative; (iii) Whether the petitioner was present at the spot or not would require a proper adjudication especially when Tarsem Singh files an affidavit denying that he was present. (iv) As a necessary corollary, it would require to be explained by the respondents as to how any representative from the petitioner-Company could have come to the respondent’s office to be present without any form of notice in communication. (iv) As a necessary corollary, it would require to be explained by the respondents as to how any representative from the petitioner-Company could have come to the respondent’s office to be present without any form of notice in communication. (v) Whether the so called tampering of the meter could have been done by the petitioner and the so called manipulations that were alleged to have been done were not already there in the meter at the time of its original installation; and (vi) whether the electricity consumption pattern registered any thing unusual that would indicate that it could have been only due to the tampering with the meter. These matters cannot be decided before the Court under Article 226 without allowing the parties to join issues either by oral evidence or by affidavit or in any manner through the admissible procedures before the Appellate Authority in exercise of the powers under Section 127(3). 12. The petitioner-Company has had no power supply and it is stated by the counsel that serious prejudice has resulted by the act of the respondent. If an appeal is to be filed, it could possibly be done only after payment of 50% of the assessed amount. If the petitioner applies for restoration on preferring an appeal, it shall be duly considered by the Appellate Authority. If there is any delay in preferring the appeal, the same may be condoned, having regard to the fact that the petitioner was prosecuting the case before this Court and the final order of assessment itself has been made only subsequent to the filing of the writ petition. 13. The several prayers in the writ petition are not, therefore, dealt with separately and suffice it to hold that the petitioner shall take note of the subsequent event of the final assessment order and without a challenge to the same in the manner provided by law, the petitioner cannot have any remedy before this Court. 14. 13. The several prayers in the writ petition are not, therefore, dealt with separately and suffice it to hold that the petitioner shall take note of the subsequent event of the final assessment order and without a challenge to the same in the manner provided by law, the petitioner cannot have any remedy before this Court. 14. Having regard to the fact that the respondents have literally forced this litigation without complying with the directions of this court in not passing the order of final assessment within the time as undertaken to be done before this court in CWP 1455 of 2011 and further forcing a Contempt Petition to be filed to elicit the final order of assessment and still not passing the order till this writ petition was filed, I direct the respondents to pay Rs.25,000/- as costs of this petition to the petitioner. 15. The writ petition is disposed of on the above terms.