JUDGMENT Hon’ble Ashok Bhushan, J.—We have heard Shri B.C. Rai, learned counsel for the petitioner and Shri Rajenda Kumar Mishra, learned counsel appearing for the respondents. 2. Counter and rejoinder-affidavits having been exchanged between the parties, with the consent of the learned counsel for the parties, we proceed to decide the writ petition finally. 3. By this writ petition, the petitioner, proprietor of M/s. Monex Glass Private Limited has challenged the order dated 30.9.2009, by which the Executive Engineer finalized the theft assessment on the basis of checking dated 16.8.2009. Petitioner has also prayed for appropriate writ, order or direction declaring the meter testing report dated 3.9.2009 as illegal and arbitrary. 4. Brief facts of the case which emerge from the pleadings of the parties are:That the petitioner, had a contracted load of 498 KVA from the Dakshinanchal Vidyut Vitran Nigam Limited (hereinafter called the “Corporation”). Two meters have been installed by the Corporation i.e. main meter in the meter room and one out door meter installed outside the factory premises at the same line. On 20.8.2008, the Officers of the Corporation inspected the main meter and outdoor meter and no irregularity was found. Inspection report dated 20.8.2008, was prepared accordingly. On 28.4.2009, inspection was again carried out by the Officers of the Corporation alongwith authorized representatives of the manufacturing company namely: M/s. Secure Meters (Pvt.) Limited, but nothing incriminating was found either with the main meter or with the outdoor meter. Meter Sealing Certificate dated 28.4.2009 was prepared by the inspection team. An Office Memorandum dated 19.6.2009, was issued by the Corporation forming a Committee for testing of meters. On 16.8.2009, Officers of the Corporation inspected the factory premises of the petitioner. Inspecting team also obtained MRI report. New meters were installed at the factory premises of the petitioner and both the old meters were taken out and were given to the Assistant Engineer (Raid) for further investigation. On the same date i.e. 16.8.2009, Meter Sealing Certificate No. 103 was prepared. On 19.8.2009, the checking team required the petitioner to return the Meter Sealing Certificate No. 103 dated 16.8.2009 and thereafter the checking team prepared another Sealing Certificate No. 105 dated 16.8.2009. On 18.8.2009, the Superintending Engineer, issued a letter directing the Executive Engineer to obtain an acknowledgement from the petitioner to appear on 27.8.2009 in the office of the Corporation at Agra. On 18.8.2009, the Superintending Engineer, issued a letter directing the Executive Engineer to obtain an acknowledgement from the petitioner to appear on 27.8.2009 in the office of the Corporation at Agra. The said letter was served on the petitioner’s Manager working in the factory, who on the said letter endorsed that for some work, petitioner has gone out of India and he shall return on 10.9.2008, he prayed for a date to be fixed. Another letter dated 25.8.2009 was issued by the Superintending Engineer addressed to the Executive Engineer in which it was mentioned that according to the Electricity Supply Code, 2005 (hereinafter called the “Code 2005”) consumer has to be informed within seven days. It was stated in the letter that 3.9.2009 is the date fixed for opening of the meter and owner of the firm, Manager or any other representative be asked to ensure his presence on 3.9.2009 in the office of the Managing Director of the Corporation at Agra. On 25.8.2009, the Manager of the factory again wrote a letter that the firm owner is out of India and a date be fixed after 10.9.2009. He further stated that he being the Manager of the factory, cannot go out of the factory. He prayed for next date. On 3.9.2009, the meter was opened before a Committee constituted by office order dated 19.6.2009. The inspection report dated 3.9.2009 found meters body, seal, lead seal, and ultra-sonic welding steps were in order. However, it observed that foreign wires were found connected and remote control and sensing device was found inside the meter. An F.I.R. was also lodged against the petitioner on 4.9.2009 under Sections 135 and 150 of the Electricity Act, 2003 (hereinafter called the “Act, 2003”). A provisional assessment notice dated 5.9.2009 for an amount of Rs.21588487/-was sent to the petitioner. On 11.9.2009, petitioner submitted an objection against the testing of the meter carried on 3.9.2009.The objection was made against the testing of the meter done on 3.9.2009 and was not made against the provisional assessment notice dated 5.9.2009. Petitioner had also filed Writ Petition No. 49991/2009 on 15.9.2009 challenging the testing of the meter made on 3.9.2009. Petitioner’s representative on 22.9.2009 prayed for time to file objection. It was prayed that the matter be adjourned after 5.10.2009. By letter dated 23.9.2009, petitioner’s request was not acceded and 29.9.2009 was the date fixed for filing the objection. Petitioner had also filed Writ Petition No. 49991/2009 on 15.9.2009 challenging the testing of the meter made on 3.9.2009. Petitioner’s representative on 22.9.2009 prayed for time to file objection. It was prayed that the matter be adjourned after 5.10.2009. By letter dated 23.9.2009, petitioner’s request was not acceded and 29.9.2009 was the date fixed for filing the objection. On 29.9.2009, petitioner appeared before the Executive Engineer and prayed that his objection dated 11.9.2009, be first decided and he also prayed that his writ petition in the High Court is pending which is fixed for 5.10.2009, hence he be given 15 days time to file objection. Petitioner’s prayer for filing the objection was not acceded and the assessment was finalised by order dated 30.9.2009, against which order this writ petition has been filed. A Division Bench of this Court passed an interim order on 28.10.2009, restraining the respondents from enforcing the recovery proceedings in pursuance of the final assessment made by the respondents on 30.9.2009 and further directed the respondents for restoration of the power supply. The Corporation thereafter filed Special Leave to Appeal (Civil) No(s). 35966/2009, challenging the interim order dated 28.10.2009. The said Special Leave Petition was disposed of by the Apex Court on 26.3.2010 permitting the Corporation to file an application for vacating the interim order within seven days which was to be disposed of within next three weeks after giving opportunity of hearing to both the parties. 5. Counter-affidavit alongwith application for vacating the interim order has been filed by the Corporation on 3.4.2010 in this Court. 6. A perusal of the Order Sheet indicates that although the matter was listed before different Benches from time to time, but due to adjournment sought on behalf of the petitioner or respondents the stay vacation application could not be disposed of. The case was directed to be listed peremptorily on 3.4.2014. The writ petition came up before this bench on 18.4.2014 when a direction was issued to list on 21.4.2014. The matter was heard on 22.4.2014 on which date both the parties agreed that the writ petition itself be decided finally. Hearing was concluded on 22.4.2014 and the judgment was reserved. 7. Shri B.C. Rai, learned counsel appearing for the petitioner in support of the writ petition raised various submissions. He submits that the assessment order dated 30.9.2009 has been passed without giving reasonable opportunity to the petitioner. Hearing was concluded on 22.4.2014 and the judgment was reserved. 7. Shri B.C. Rai, learned counsel appearing for the petitioner in support of the writ petition raised various submissions. He submits that the assessment order dated 30.9.2009 has been passed without giving reasonable opportunity to the petitioner. Petitioner’s request made on 29.9.2009 to give 15 days time to file objection was not accepted and without there being any objection by the petitioner to the provisional assessment notice dated 5.9.2009, final assessment order dated 30.9.2009 has been passed. It is submitted that the request of the petitioner’s representative to fix a date after 10.9.2009 for opening the meter was also not acceded whereas it was informed that the owner of the firm (petitioner) has gone out of India. The respondents completed the entire proceedings hastily in utter violation of the principles of natural justice. It is further submitted by the learned counsel for the petitioner that the testing of the meter done on 3.9.2009 was made by the Corporation in violation of the provisions of Clause 5.6 (c) (iii) of the Electricity Supply Code, 2005 (hereinafter called the “Code 2005”). It is submitted that the petitioner was never given any option to indicate as to whether he wants the meter to be tested at the licensees lab, or independent lab or by electrical inspector. The petitioner never gave his consent for getting the meter tested at the Corporations Office. The testing of the meter having been done in violation of the aforesaid provision, the entire assessment is illegal. He submits that the testing of the meter has been done by the Corporation contrary to the law as laid down by the Division Bench of this Court in Smt. Amrawati Devi v. Purvanchal Vidyut Vitran Nigam Ltd and another, 2009 (1) ADJ 430 . He further submits that the assessment made is not in accordance with the provisions of the Act, 2003 as well as the Code, 2005. He submits that the assessment has been made for a period of 365 days whereas on 28.4.2009, the petitioner’s meter was inspected by the Corporation’s team and nothing wrong was found at the petitioner premises and the assessment could not have been made of any date prior to 28.4.2009. 8. Learned counsel for the petitioner has also challenged the office order dated 19.6.2009, being ultra vires to the provisions of the Code, 2005. 8. Learned counsel for the petitioner has also challenged the office order dated 19.6.2009, being ultra vires to the provisions of the Code, 2005. He submits that no executive order can be passed contrary to the statutory scheme as delineated in the Code, 2005. 9. Shri Rajenda Kumar Mishra, learned counsel appearing for the Corporation refuting the submissions of the learned counsel for the petitioner contended that against the assessment order dated 30.9.2009, the petitioner has a statutory remedy of filing an appeal under Section 127 of the Act, 2003, hence the writ petition be not entertained to enable the petitioner to avail the remedy of appeal. It is submitted that Clause 5.6 (c) (iii) of the Code, 2005 is not attracted in the present case. It is submitted that the said clause is attracted only with regard to the defective meters and is not applicable in the cases of theft of electricity within the meaning of Section 135 of the Act, 2003. He further submits that the Division Bench judgment of this Court in Smt. Amrawati Devi’s case (supra) is not applicable in the facts of the present case. It is further submitted that the ratio of the Division Bench judgment in Smt. Amwarawati Devi’s case (supra) failed to notice sub-clause (iii) of Clause 5.6 (c) of the Code, 2005. He submits that the option once exercised by the consumer shall not be changed. He submits that the testing of the meter conducted on 3.9.2009 has became final. It is submitted that the prayer made in the objection dated 11.9.2009 by the petitioner that the meters be re-checked by the licensee in some other independent lab is neither practically possible, nor legally permissible. 10. Learned counsel for the parties have placed reliance on various judgments of this Court as well of the Apex Court which shall be referred to while considering their submissions in detail. 11. At first, we need to consider the submissions of the learned counsel for the respondents that there being remedy of appeal provided, the writ petition be not entertained and the petitioner be relegated to avail the remedy of appeal provided under Section 127 of the Act, 2003. There cannot be any dispute that against the final assessment made under Section 126 of the Act, 2003, an appeal is provided under Section 127 of the Act, 2003. There cannot be any dispute that against the final assessment made under Section 126 of the Act, 2003, an appeal is provided under Section 127 of the Act, 2003. There are two reasons due to which we do not find this is a fit case to be dismissed on the ground of alternate statutory remedy. Firstly, sub-Section (3) of Section 126 of the Act, 2003 contemplates giving an reasonable opportunity of hearing to a consumer before passing a final order of assessment. The submission of the petitioner in the writ petition is that he was not afforded reasonable opportunity of hearing and the assessment order has been passed in violation of the principles of natural justice. From the assessment order dated 30.9.2009, it is clear that there was no objection by the petitioner to the provisional assessment notice dated 5.9.2009. Petitioner had also appeared on 29.9.2009 and prayed for 15 days time to file an objection which was not considered. Even the one months period contemplated under Section 126 (3) of the Act, 2003 had not expired. There being allegation by the petitioner that the assessment order dated 30.9.2009 has been passed in violation of the principles of natural justice, we think it proper to consider the above submissions on merit. It is well-settled that when an order is passed in violation of the principles of natural justice, the alternative remedy is not a bar in entertaining the writ petition. The above proposition has been laid down by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, 1998 (8) SCC 1 , in which case the Apex Court laid down following in paragraphs 15, 16, 17, 18, 19, 20 and 21. “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative reme3dy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely or some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmad v. Municipal Board, Kairana, AIR 1950 SC 163 , laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commission, AIR 1954 SC 207 , which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , as under : “But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 18. This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506 and was affirmed and followed in the following words: “The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court”. 19. Another Constitution Bench decision in Calcutta Discount Co.Ltd. v. Income Tax Officer Companies Distt. I, AIR 1961 SC 372 , laid down : “Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act”. 20. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act”. 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “Tribunal”.” 12. Secondly, the writ petition has been entertained by this Court on 28.10.2009, on which date the interim order was also passed by this Court staying the recovery proceedings in pursuance of the final assessment dated 30.9.2009 and the writ petition has been pending in this Court for about five years. This is another reason due to which we propose to decide the writ petition on merits instead of dismissing the writ petition on the ground of alternative remedy. 13. The submission which needs to be next considered is the submission raised by the learned counsel for the petitioner that the assessment order dated 30.9.2009 has been passed in violation of the principles of natural justice since he has not been afforded a reasonable opportunity of hearing before making the final assessment. Sub-section (3) of Section 126 of the Act, 2003 provides as follows: “126. Assessment.— (1)............ (2)........... Sub-section (3) of Section 126 of the Act, 2003 provides as follows: “126. Assessment.— (1)............ (2)........... (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.” 14. Whether reasonable opportunity of hearing has been given to a consumer before making a final assessment is the question which has to be determined on the facts of each case. 15. From the facts of the case as noted above, 16.8.2009, was the date when the checking was made on the petitioner’s premises. After the checking dated 16.8.2009, letter dated 18.8.2009 was served on the petitioner in which 27.8.2009 was the date fixed for testing of the meter. The Manager of the petitioner’s factory made an endorsement that the owner of the factory (petitioner) has gone out of India and he shall return on 10.9.2009, hence the date of testing of the meter be fixed thereafter. The said request was not acceded by the Executive Engineer and by another letter dated 25.8.2009, 3.9.2009 was the date fixed for testing of the meter on which letter again the same endorsement was made by the Manager which was made on 25.8.2009 that a date be fixed after 10.9.2009. It was stated that the Manager is unable to come out of the factory premises in view of the absence of the owner. Despite the aforesaid two protests, the respondents proceeded with the testing of the meter on 3.9.2009 and a provisional assessment notice dated 5.9.2009 was served on the petitioner fixing 23.9.2009 in the matter. On 11.9.2009, petitioner had filed a detailed objection against the testing of the meter conducted on 3.9.2009. Petitioner referring to Clause 5.6 (c) (iii) of the Code, 2005 stated that the testing of the meter was done without the consent of the petitioner. Following prayer was made in paragraph 24 of the said application which is to the following effect: “24. Petitioner referring to Clause 5.6 (c) (iii) of the Code, 2005 stated that the testing of the meter was done without the consent of the petitioner. Following prayer was made in paragraph 24 of the said application which is to the following effect: “24. It is, therefore, requested that power supply of the factory may be restored and information regarding approved independent and competent test laboratory may be provided so that Applicant may opt for testing of meter and further provisional assessment notice may be withdrawn.” 16. By letter dated 23.9.2009, the Executive Engineer fixed 29.9.2009 as the date for filing objection. Petitioner appeared on the said date and filed an application praying that his objection dated 11.9.2009 be first disposed of. It was further stated that his writ petition in the High Court is pending in which 5.10.2009 is the date fixed and he requested for 15 days time for filing objection. The said prayer of the petitioner was refused and the Corporation proceeded to pass the final assessment order dated 30.9.2009. 17. From the facts as narrated above, it is clear that the request of the petitioner for fixing a date after 10.9.2009 for testing of the meter was not acceded to and the meter was tested in the office of the Corporation on 3.9.2009, although one of his representatives was present. The provisional assessment notice dated 5.9.2009 was served on the petitioner fixing 23.9.2009 as the date fixed for filing objection. Another date fixed was 29.9.2009, on which date the petitioner appeared and made a request for granting 15 days time. Before that a detailed objection dated 11.9.2009 was filed by the petitioner against the testing of the meter conducted on 3.9.2009. Petitioner in his objection dated 11.9.2009 has requested for information in respect of providing independent and competent test lab so that the applicant may opt for testing of the meter. The said objection remained pending and on 29.9.2009 when the petitioner appeared, he again prayed that the said objection be decided and 15 days time be given. The Corporation did not decide his objection dated 11.9.2009. The said objection remained pending and on 29.9.2009 when the petitioner appeared, he again prayed that the said objection be decided and 15 days time be given. The Corporation did not decide his objection dated 11.9.2009. Further more, on 29.9.2009, when for the first time the petitioner appeared he stated that he had gone out of India at the time of checking and testing of the meter and requested for time to file objection which ought to have been acceded even though the respondents may not have granted 15 days time, at least a breathing time be allowed to file objection. Further, the period of one month from serving the provisional assessment notice dated 5.9.2009 was also not expiring and there was no such urgency on the part of the Corporation to finalise the assessment, even two or three days time for filing the objection would have been given in consonance of the principles of natural justice. When the Corporation did not accede to the petitioner’s request and finally proceeded to pass the assessment order dated 30.9.2009 which in our considered opinion has violated the principles of natural justice in the facts and circumstances of the present case, hence the assessment order dated 30.9.2009 deserves to be set-aside on this ground alone. 18. Much argument has been raised by the learned counsel for both the parties on Clause 5.6 (c) (iii) of the Code, 2005 in reference of the testing of the meter which was conducted on 3.9.2009. The submission of the petitioner’s counsel is that before the testing of the meter it was removed from the premises of the petitioner on 16.8.2009, petitioner was required to give an option for getting the meter tested either by a licensees laboratory or independent lab or with the electrical inspector. It is submitted that the petitioner was neither informed about the option, nor he ever exercised his option. The testing of the meter done on 16.8.2009, is contrary to the statutory scheme. It is relevant to note the statutory scheme of Code, 2005 in the above context. 19. Chapter V of the Code, 2005 relates to metering. Clause 5.4 of the Code, 2005 deals with ownership and use of meter. The testing of the meter done on 16.8.2009, is contrary to the statutory scheme. It is relevant to note the statutory scheme of Code, 2005 in the above context. 19. Chapter V of the Code, 2005 relates to metering. Clause 5.4 of the Code, 2005 deals with ownership and use of meter. Clause 5.4 (a) which is relevant is quoted below: “5.4 Ownership and Use of meters : (a) [At the time of seeking a new connection the consumer shall indicate option in the application form to either purchase the meter, MCB/CB and associated equipment himself from the authorized vendor(s)/make or manufacturers of meter approved by the licensee, or require that such approved meter, MCB/CB and associated equipment be supplied by the Licensee. Provided that it shall be the responsibility of the licensee to ensure that meters of national repute only are used as specified in clause 5.2, and under Sec 55 of the Act by CEA. The licensee shall not restrict the consumer choice to 2-3 make/manufacturer only, but shall offer a wide ranging choice from amongst the list of approved make/manufacturers. The Licensee shall put the list of approved vendor(s)/make or manufacturers of meter, on their website/display on the notice board/and if requested, supply the consumer with the list of approved vendor(s)/make or manufacturer. Provided also that the licensee shall get the meter lots inspected by test labs having accreditation from National Accreditation Board for testing and Calibrating laboratories, and also adhere to test procedure specified in clause 5.5. The Licensee shall put the list of such approved test labs, on their website/display on the notice board/and if requested, supply the consumer with the list of approved labs. The licensee shall also set up appropriate number of testing labs and get the accreditations from NABL, if not already done.]” 20. Clause 5.6 of the Code, 2005 deals with Defective Meters. Clause 5.6 (a), (b),(c) and (d) which are relevant in the present case are quoted below: “5.6 Defective Meters.—(a) The Licensee shall have the right to test any meter and related apparatus if there is a reasonable doubt about the accuracy of the meter and the consumer shall provide the Licensee necessary assistance in conduct of test. However, the consumer shall be allowed to be present during the testing. However, the consumer shall be allowed to be present during the testing. [(b) A consumer may request the Licensee to test the meter installed on his premises if he doubts its accuracy of meter readings not commensurate with his consumption of electricity, stoppage of meter, damage to seal, by applying to the Licensee in prescribed format (Annexure 5.1) alongwith the requisite testing fee. The Licensee shall test the meter: (i) Within 15 days of the receipt of the application, at consumer’s premises, or (ii) Within 30 days at licensee’s lab, or Independent lab, or (iii) By installing a tested check meter in series with the existing meter within 7 days of filing of application.] (c) In case of testing of meter at consumer’s premises, the testing of meter shall be done for a minimum consumption of 1 kWh. The meter testing team of the licensee shall carry heating load of sufficient capacity to carry out the testing. Optical Scanner may be used for counting the pulses/revolutions or meter shall be tested as per the procedure described in IS/IER 1956 or through aqua-check for LT meters and through RSS for others. The aqua Check and RSS shall be calibrated in laboratory of national repute once in a year. (i) In case the meter is found O.K., no further action shall be taken. (ii) In case the meter is found fast/slow by the licensee, and the consumer agrees to the report, the meter shall be replaced by a new meter within 15 days, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the subsequent bill as per the test results. In case meter is found to be slow, at the request of the consumer, these charges may be recovered in installments not exceeding three. [(iii) If the consumer disputes the results of testing, or testing at consumer’s premises is difficult, the defective meter shall be replaced by a new tested meter by the Licensee, and, the defective meter after sealing in presence of consumer, shall be tested at licensee’s lab/Independent lab/Electrical Inspector, as agreed by consumer. The option once exercised by consumer shall not be changed. The option once exercised by consumer shall not be changed. The decision on the basis of reports of the test lab shall be final on the Licensee as well as the consumer.] (d) In cases of testing of a meter in the licensee’s/Independent test laboratory, (i). Consumer shall be informed of the proposed date of testing at least 7 days in advance so that he may be present at the time of testing, personally or through an authorized representative. ii. The signature of the consumer or his authorized representative, if any present, shall be obtained on the Test Result Sheet. iii. The results of testing, billing, and in case the consumer disputes the results of testing, shall be same as provided in clause 5.6(c) above.” 21. Clause 5.9 of the Code, 2005 deals with cost of Replacement of Defective/Burnt Meters. Clause 5.9 (b) (ii) which is relevant is quoted below: “5.9 Cost of Replacement of Defective/Burnt Meters. (a) ........ (b) [xxx] (i) ......... (ii) If it is established, as a result of testing, that the meter was rendered defective due to tampering or any other deliberate act by the consumer to interfere with the meter, the cost of the meter shall be borne by the consumer as above. The consumer shall be assessed under Section 126 of the Electricity Act 2003, and shall be punishable under Section 138 of the Electricity Act 2003. In addition, action as permissible under law shall be taken against the consumer for pilferage and tampering.” 22. In the order impugned dated 30.9.2009, the Executive Engineer referring to Clause 5.6 (c) of the Code, 2005, has stated that Clause 5.6 (c) is applicable for defective meters only, and is not applicable for the tampered meters. In the counter-affidavit filed on behalf of the respondents also a categorical stand has been taken by the respondents that clause 5.6 (c) of the Code, 2005 as well as the Division Bench judgment of this Court in Smt. Amrawati Devi’s case (supra) relates to defective meter and does not apply to tampered meter. Following was stated in para 29 of the counter-affidavit which is to the following effect: “29. That, the contents of paragraph Nos. 24,25 and 26 of the writ petition are incorrect and as such denied. Following was stated in para 29 of the counter-affidavit which is to the following effect: “29. That, the contents of paragraph Nos. 24,25 and 26 of the writ petition are incorrect and as such denied. It is most respectfully submitted that whatever the objection has been raised by the petitioner the same were duly considered and decided by the assessing officer by means of the assessment order dated 30.9.2009. The allegation being made by the petitioner contrary to this are incorrect and unfounded and as such denied. It is most respectfully submitted that decision of this Court in the case of Smt. Amrawati Devi (2009 (1) A.D.J.430) would not apply in the present case inasmuch as the ratio laid down by this Hon’ble Court in the case of Smt. Amrawati Devi is related to the defective meters and here in the instant case the meter of petitioner were found to be tampered. It is submitted that there is clear distinction between ‘tampered meter’ and ‘defective meter’ under the scheme of the Act, 2003 and Supply Code, 2005 and therefore, the decision of this Hon’ble Court in the case of Smt. Amrawati Devi as affirmed by Hon’ble Supreme Court will have no application in the present case. It is further to point out here that the meters of the petitioner were tested by the committee of expert engineers and remote controlling and sensing device was found fitted inside the meters and as such the defect could be and has been detected by naked eyes and therefore, the same was not required to be tested in any lab as the same cannot be termed as defect in meter and it comes within the definition of tampering in meter and therefore, the meters were found to be tampered and thus, the provisions pertaining to the defective meters would not apply in the instant case.” 23. There is no dispute in the present case that the meter was taken out from the petitioner’s premises on 16.8.2009, after it being sealed was sent to be tested on licensees lab/independent lab/electrical inspector as agreed by the consumer. Relevant part of Clause 5.6 (c) (iii) of the Code, 2005 is “........ shall be tested at licensee’s lab/Independent lab/Electrical Inspector, as agreed by consumer.” 24. Relevant part of Clause 5.6 (c) (iii) of the Code, 2005 is “........ shall be tested at licensee’s lab/Independent lab/Electrical Inspector, as agreed by consumer.” 24. The agreement of the consumer as contemplated above in Clause 5.6 (c) (iii) of the Code, 2005, is an agreement for testing of the meter at any of the places mentioned therein i.e. (i) Licensees lab (ii) Independent lab (iii) Electrical Inspector. The aforesaid clause further stated that the option once exercised by the consumer shall not be changed. Thus, the consumer has to opt any of the three places for testing of the meter. The word “agree” has been defined in P. Ramanatha Aiyar’s The Law Lexicon 3rd Edition 2012 in following words: “Agree. To concur, to come to a mutual assent; to come into harmony, to promise; to contract;to assent; to unite in mental action; to acquiesce in. In Thorton v. Kelley, II R I 498, 499, it is said that the word “agree” is sometimes used to signify an offer merely, but properly speaking it embraces concurrence or assent. (Ame.Cyc.) To enter into an agreement [S.58(b),T.P. Act (4 of 1882)]; to concur [S.23,Indian Evidence Act (1 of 1872)].” 25. Now the submission and the stand taken by the learned counsel for the respondents in the impugned order as well as in the counter-affidavit is that Clause 5.6 of the Code, 2005 is not applicable when there is an allegation that the meter has been tampered. Clause 5.6 (a) of the Code, 2005 provides “ The Licensee shall have the right to test any meter and related apparatus”. Although the heading of the word is “defective meters”, but the said heading cannot control the substantive provision when the provision is clear and categorical. The right of a licensee to test the meter where licensee has a reasonable doubt that the meter is tampered cannot be taken away and in event the right is only confined to defective meters as alleged by the respondents, the said interpretation shall not advance the object of the Act, 2003. 26. Clause 5.9 of the Code, 2005 deals with cost of Replacement of Defective/Burnt Meters. Sub-clause (a) (ii) of the Code, 2005 uses the words “as a result of testing, that the meter was rendered defective due to tampering or any other deliberate act by the consumer to interfere with the meter”. 26. Clause 5.9 of the Code, 2005 deals with cost of Replacement of Defective/Burnt Meters. Sub-clause (a) (ii) of the Code, 2005 uses the words “as a result of testing, that the meter was rendered defective due to tampering or any other deliberate act by the consumer to interfere with the meter”. Thus, when the sub-clauses 5.6 and 5.9 are read together, it is clear that the meter is to be treated as a defective meter consequent to tampering or any other deliberate act by the consumer. Thus, in the cases where the allegations are that the consumer has tampered the meter the said meter is fully covered by the definition of defective meters as given in Cause 5.6 of the Code, 2005 and the case of the respondents that Clause 5.6 is not attracted is incorrect. 27. A Division Bench judgment of this Court in Smt. Amrawati Devi’s case (supra) had considered the same Clause 5.6 (c) (iii) of the Code 2005. Paragraphs 6, 7, 8, 9, 10 and 11 of the said judgments are quoted below: “6. From reading of Clause 5.6 (c) (iii) it is clear that this clause in unequivocal terms declares that the defective meter after sealing in presence of consumer, shall be tested, at licensee’s lab/independent lab/Electrical Inspector, as agreed by the consumer. Therefore, the agreement by the consumer is essential for testing of the meter either at the laboratory of the Nigam or at the laboratory of some other independent agency. It further provides that option exercised by consumer once cannot be changed. The clause, therefore, empowers the authorities to seal the meter and get it tested with consumer’s agreement. Since the clause operates harshly against the consumer it has to be construed strictly. The consumer has a right to get the meter tested with independent agency. The authorities, therefore, have a corresponding duty to apprise the consumer of the right. Failure to discharge this duty, which flows from sub-clause (c) (iii) by the authorities while exercising their right to send the meter for testing, renders the entire proceedings for sealing the meter irregular and illegal. Annexure-3 dated 26.11.2008 does not comply with this requirement. The authorities, therefore, have a corresponding duty to apprise the consumer of the right. Failure to discharge this duty, which flows from sub-clause (c) (iii) by the authorities while exercising their right to send the meter for testing, renders the entire proceedings for sealing the meter irregular and illegal. Annexure-3 dated 26.11.2008 does not comply with this requirement. The relevant portion is extracted below: “1- ehVj ,sD;w psd ls psd fd;k x;k ehVj 12-61 /khek ik;k x;kA cwhl=-12.61% 2- ehVj la[;k ;w0ih0bZ0 dks mrkj dj lhy fd;k x;kA ehVj dk ijh{k.k 4-12-2008 dks ehVj ySc esa gksxkA miHkksDrk dks lwfpr fd;k tkrk gS fd fnukad 4-12-2008 dks 12-00 cts ehVj ds ijh{k.k gsrq mifLFkr gksA^^ 7. It only informs the consumer that the meter shall be tested at licensee’s laboratory and she should be present on 4.12.2008. In absence of intimation that she has a right to get it tested at independent laboratory, the notice was contrary to law. 8. It has been argued by the respondents that the Code, 2005 being the law, the petitioner cannot claim that she was not aware of it. On the other hand the counsel for the petitioner argued that ‘ignorance of law is no excuse’ does not apply universally. We do not consider it necessary to enter into this wider issue as we have found the notice dated 26.11.2008 Annexure-3 to be contrary to Clause 5.6 (c) (ii). 9. For the same reason the argument of the respondents that once the petitioner did not object, she waived her right to get the defective meter tested by independent laboratory cannot be accepted, unless she knew or had knowledge about the provisions of Clause 5.6 (c) (iii) of the Code, 2005. In such situation the doctrine of waiver cannot be pressed into service. The Apex Court in M/s. Moti Lal Padampat Sugar Mills Ltd. v. State of U.P. and others, AIR 1979 SC 621 , had held in paragraph 6 as below: “Secondly, it is difficult to see how, on the facts, the plea of waiver could be said to have been made out by the State Government. Waiver means abandonment of a right and it may be either express or implied form of conduct, but its basic requirement is that it must be “an intentional act with knowledge”. Per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Waiver means abandonment of a right and it may be either express or implied form of conduct, but its basic requirement is that it must be “an intentional act with knowledge”. Per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Co., (1867) LR 2 HL 43 at 57. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury’s Laws of England (4th Edn.) Volume 16 in paragraph 1472 at page 994 that for a “waiver to be effectual it is essential that the person granting it should be fully informed as to his rights” and Isaacs, J., delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd., (1920) 28 CLR 305 (Aus), has also emphasised that waiver “must be with knowledge, an essential supported by many authorities.”...Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law. Over a hundred and thirty years ago, Maule, J., pointed out in Martindale v. Falkner, (1846) 2 CB 706, “There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so.” Scrutton, L.J., also once said: “It is impossible to know all the statutory law, and not very possible to know all the common law.” But it was Lord Arkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartlam, (1937) AC 473"....the fact is that there is not and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the Appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated June 25, 1970. It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the Appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated June 25, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government. 10. In our opinion, in absence of intimation of Clause 5.6 (c) (iii) of the Code, 2005, the petitioner could not be deemed to have waived her right to exercise her option to get her meter tested at independent laboratory. To be fair to the Nigam as well as consumer, a notice is required to be given by the Nigam to the consumer as to whether the consumer wants to get the defective meter tested at the laboratory of the Nigam or by Electrical Inspector or by an independent agency. The answer of the notice has to be given by the consumer. After the option is exercised by the consumer and he agrees to get the meter tested at the laboratory of the Nigam or Electrical Inspector, then the Nigam may fix the date for testing the meter. If the consumer exercises his option to get the meter tested from outside agency, the list of the names of the outside agency approved by the Nigam should be intimated to the consumer so that he may choose any one of the outside agenies and according to the option of the consumer. The outside agency may test the meter and its finding about testing of meter would be final. It is after following this procedure that the option exercised by consumer cannot be changed. The decision on the basis of option exercised by the consumer, and the report of the test laboratory shall be final and binding on the licensee as well as on the consumer. But the Nigam did not inform the petitioner to exercise her option on 26.11.2008 when the meter of the petitioner was sealed and she was informed to appear on 4.12.2008 for testing of the meter. 11. But the Nigam did not inform the petitioner to exercise her option on 26.11.2008 when the meter of the petitioner was sealed and she was informed to appear on 4.12.2008 for testing of the meter. 11. We are of the considered opinion that after sealing the meter the Nigam must serve a notice, on which it should be printed in bold capital letters, intimating the consumer or his representative to exercise his option either to get the meter tested by the Electrical Inspector or at the laboratory of the Nigam or the consumer may exercise his option to get his meter tested from one of the outside agencies approved by the Nigam mentioned in the notice. Once the consumer exercises his option then immediately a date has to be fixed for testing of the meter in the presence of the consumer.” 28. The law laid down in the aforesaid case fully supports the submission of the learned counsel for the petitioner. It is relevant to note that against the aforesaid Division Bench judgment dated 15.1.2009, Purvanchan Vidyut Vitran Nigam Limited filed Special Leave to Appeal which was dismissed by the Apex Court on 3.8.2009. The respondents having taken the stand that Clause 5.6 (c) of the Code, 2005 is not applicable with regard to the testing of the meter conducted on 3.9.2009, and we having come to the conclusion that Clause 5.6 (c) of the Code, 2005 is applicable, the final assessment order dated 30.9.2009 falls on the said ground also and deserves to be set-aside. 29. Learned counsel for the petitioner has also raised some other submissions regarding the assessment made by the respondents on 30.9.2009 including the submissions that the assessment made for 365 days was unjustified since the respondents have already conducted the inspection on 28.4.2009 and no period prior to the said date can be taken for assessment. However, we having taken the view that the petitioner was entitled for opportunity to file an objection against the provisional assessment notice dated 5.9.2009, we leave it open to the petitioner to raise such objection as permissible regarding the provisional assessment, and do not feel it necessary to decide the said submissions in this writ petition. 30. However, we having taken the view that the petitioner was entitled for opportunity to file an objection against the provisional assessment notice dated 5.9.2009, we leave it open to the petitioner to raise such objection as permissible regarding the provisional assessment, and do not feel it necessary to decide the said submissions in this writ petition. 30. We having held that the assessment order dated 30.9.2009 deserves to be set-aside on the grounds as indicated above, and fresh assessment be made, the submission of the petitioner challenging the Office Order dated 19.6.2009 needs no consideration in this writ petition. The above submission is left open to be considered in an appropriate case. 31. In the result the assessment order dated 30.9.2009, is set-aside. The writ petition is disposed of. The petitioner is allowed 15 days time to file objection to the provisional assessment notice dated 5.9.2009 before the Executive Engineer and the Executive Engineer thereafter shall proceed to finalise the assessment keeping in view the observations made by us in this judgment. 32. Parties shall bear their own costs.