JUDGMENT : S. N. PRASAD, J. 1. Both these writ petitions are against the common order passed by the appellate authority –cum- Deputy Electrical Inspector, Angul in AAC Nos.22 and 23 of 2005 dtd.15.03.2007, as such the same are being disposed of by this common judgment. 2. The fact of the cases is that the consumer, opposite party no.1 was availing supply of power from the system of the petitioner, the Central Electricity Utility of Service of Odisha (in short CESU) which was subjected to physical verification on 18.08.2003 wherein it was found that he was availing / using the power supply unauthorizely which were recorded in the verification report in presence of the consumer, accordingly an inspection report was forwarded to him along with a Bill for penal charges for unauthorized use of electricity by forwarding letter dtd.22.08.2003 calling upon him to make payment of a sum of Rs.1,97,063/- for payment against the above charge. He has filed a representation before the Designated Authority as well as the Chief Executive Officer for waiver of the penal Bill and to escape from immediate disconnection of the power supply, wherein an order was passed by the Chief Executive Officer for acceptance of 30% of the Penal amount during the pendency of the grievance petition before the Designated Authority in order to protect the hurdles of disconnection of power supply in favour of the petitioner, the grievance petition, pending before the Designated Authority has been registered as Case No.89 of 2003. After installation of new meter on 28.8.2003 the supply of power was disconnected on 2.9.2003 due to non-payment of the dues as directed by the Chief Executive Officer, however, on payment of dues power supply was restored back on 5.9.2003. The Designated Authority passed an order wherein the finding of unauthorized use of electricity was confirmed due to tampering of meter and penal action taken by the petitioner were held as justified. The petitioner has filed an appeal before the competent authority U/s.127 of the Electricity Act, 2003 wherein the competent authority, after hearing the parties, have directed the authorities to revise the assessment order which is impugned in these writ petitions. 3. The petitioner has filed an appeal before the competent authority U/s.127 of the Electricity Act, 2003 wherein the competent authority, after hearing the parties, have directed the authorities to revise the assessment order which is impugned in these writ petitions. 3. The ground taken by the petitioner in assailing the order is that the order is beyond the period of limitation but the competent authority has exceeded his jurisdiction when exercised the power conferred under the provision of Section 127 of the Act, 2003 wherein there is provision to prefer appeal within 30 days of the order, but the appeal has been filed after the stipulated period of 30 days, as such the same should not have been entertained by the authorities, but while entertaining the same, the competent authority exceeded his jurisdiction, as such on this ground alone the order impugned is not sustainable in the eye of law. 4. Per contra, learned counsel appearing for opposite party no.1, the consumer, has vehemently opposed the submission, stand and argument advanced on behalf of CESU by submitting that there is no question of any limitation because the order cannot be said to be passed under the provision of Section 127 of the Act, 2003 reason being that the provision of appeal as contemplated under the provision of Section 127 of the Act, 2003 is to be filed against an order passed u/s.126(5) of the Act, 2003 but there is no order having been passed by the authorities in exercise of power conferred to it U/s.126(5) of the Act, 2003. He submits that when there is no order U/s.126(5), then there is no question to say the order impugned has been passed in exercise of power conferred U/s.126(5) of the Act, 2003. He submits that when there is no order U/s.126(5), then there is no question to say the order impugned has been passed in exercise of power conferred U/s.126(5) of the Act, 2003. He further submits that merely on account of an inspection report containing therein the penal bill, the same cannot be said to an order having been passed U/s.126 of the Act, 2003 for the reason that the provision of Section 126 provides power to the authorities to make a provisional assessment, i.e. under the provision of Section 126(1) while provision of Section 126(2) provides for service of the order of provisional assessment upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed, provision of Section 126(3) confers right upon the person upon whom an order has been served under sub-section (2) entitling him to file objection, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such persons, 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 while sub-section (4) confers right upon the person served with the order of provisional assessment to accept such assessment and deposit the assessed amount within the licensee within seven days of service of such provisional assessment order upon him while sub-section (5) confers power upon the assessing officer, if he reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. According to him there is no order U/s.126 since no opportunity was given to him to make objection against the provisional assessment and there is no consideration of such objection since nothing has been recorded by the competent authority in this regard. He further submits that Section 127 confers power upon the person aggrieved to prefer an appeal against the final order made under Section 126. He further submits that Section 127 confers power upon the person aggrieved to prefer an appeal against the final order made under Section 126. He submits that there is no order U/s.126, hence the order impugned cannot be said to be passed U/s.127 of the Act, 2003. 5. Learned counsel appearing for the petitioner – CESU, while rebutting the argument advanced on behalf of opposite party no.1 – consumer, has submitted that there is an order passed under the provision of Regulation 105 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code, 1998 (in short the Code, 1998) wherein there is no provision to provide opportunity to file objection, as such the contention raised by the consumer that he ought to have been provided an opportunity to file objection is not in consonance with the provision of Code, 1998. He submits that it is the consumer who himself has approached to the appellate authority and his application was entertained by the competent authority authorized under the provision of Section 127 of the Act, 2003, as such now he cannot say that the order impugned is not passed under the provision of Section 127 of the Act, 2003. On the strength of these arguments, submission has been made to allow both these writ petitions. 6. Heard the learned counsels for the parties and perused the documents available on record and on its appreciation this court found that prior to enactment of the Electricity Act, 2003 there is a Code known as Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code, 1998 wherein provision has been made under Regulation 105 conferring power to the licensee to issue penal Bill in case of any pilferage or any tampering with the meter leading to theft of electricity. Thereafter the Electricity Act, 2003 has came into being in order to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity, the said Act has came into being w.e.f. 10th June, 2003. The new Act was to replace the Indian Electricity Act, 2010, Electricity Supply Act, 1948 and the Electricity Regulatory Commission Act, 1998. The Electricity Act, 2003 contains a provision under Section 126, under Part-XII for investigation and enforcement which speaks as follows:- “126. The new Act was to replace the Indian Electricity Act, 2010, Electricity Supply Act, 1948 and the Electricity Regulatory Commission Act, 1998. The Electricity Act, 2003 contains a provision under Section 126, under Part-XII for investigation and enforcement which speaks as follows:- “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. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person. (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).” Section 127 contains provision of appeal to be filed before the appellate authority which reads as follows:- “127. Appeal to appellate authority.- (1) Any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. Appeal to appellate authority.- (1) Any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months.” It is evident from the provision of Section 126 that the power has been conferred upon the licensee to make 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, the copy of the provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises who may file his objection, if any, any person served with the order of provisional assessment may accept such assessment and deposit the assessed amount within seven days of service of such provisional assessment order upon him, however the assessing officer, on consideration of his objection if reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. The provision of Section 127 provides power by constituting an appellate authority who can hear the appeal against the final order made U/s.126 if filed within 30 days of the said order. The provision of Section 127 provides power by constituting an appellate authority who can hear the appeal against the final order made U/s.126 if filed within 30 days of the said order. Prior to enactment of Electricity Act, 2003 the State of Odisha has come up with Orissa Electricity Reform Act, 1995 to provide for restructuring of the electricity industry for the rationalization of the generation, transmission, distribution and supply of electricity known as The Orissa Electricity Reform Act, 1995 by virtue of its power The Orissa Electricity Regulatory Commission has also been constituted under Chapter-II wherein the provision of supply Code known as Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 1998 has been enacted upon w.e.f. 07th September, 1998, the said Code contains a provision for inspection under the provision of Code 52. A separate provision has been made under the provision of Code 105 to levy penal charges on detection of unauthorized use in any manner by a consumer, the load connected in excess of the authorized load shall be treated as unauthorized load. The material which has been brought on record by the learned counsels for the parties is that a proceeding has been initiated under the provision of Code 105 which was based upon an inspection report prepared on an inspection conducted on 18.08.2003 under Annexure-1 and on the basis of the same a penal Bill was issued on 22.8.2003 of an amount of Rs.1,97,063/-. The consumer, in respect of the said bill has made an objection in the shape of an appeal which has been registered wherein an order has been passed by the Deputy Electrical Inspector on 15.3.2007 quashing the entire assessment by taking into consideration the fact that due to confusion over non-compliance of the provision of Section 126 of the Electricity Act, 2003, the final assessment order is not convincing and as such the same has been quashed with a direction to the opposite parties – the petitioner to re-revise the assessment order as per the direction made therein. The learned counsel appearing for the licensee has raised an objection regarding maintainability of appeal U/s.127 which was beyond the period of 30 days as provided Under Section 126 of the Act, 2003 while the same has been disputed by the consumer, the opposite party no.1 herein, by stating that it cannot be considered to be an application U/s.127 of the Act, 2003 since there is no order having been passed by the authority in exercise of power conferred U/s.126 of the Act, 2003, hence there is no question of any limitation. This court, after appreciating the argument advanced on behalf of the parties and going across the statutory provision, is of the considered view that the inspection was done on 18.8.2003 wherein it has been detected that unauthorized use of electricity was going on and accordingly, in exercise of power conferred under the Supply Code, 1998 a demand has been raised of Rs.1,97,063/-, the consumer has made an objection to the same which has been entertained by the authority as an appeal U/s.127 of the Act, 2003. It is evident from the material available on record that the inspecting team while issuing the demand, has exercised the power conferred under the Supply Code, 1998 by issuing a demand on 22.8.2003, admittedly on that date the provision of Act 2003 has came into being, i.e. on 10th June, 2003, as such very issuance of Annexure-2 under the provision of Supply code, 1998 is not in consonance with the statutory provision as contained in the Electricity Act, 2003 which has been enacted in super-session of the provision of Electricity Act, 1010 and 1948. Even accepting for the sake of argument that due to wrong reference of provision of law, an order cannot be said to be illegal, even then the authority cannot be said to exercise its jurisdiction in contemplation of the provision of Section 126 of the Act, 2003 wherein there is provision to serve a copy of the provisional assessment, although the same has been served to the petitioner but even on that account, i.e. as per the provision as contained in Section 126(2) of the Act, 2003, Annexure-2 will not be said to be in compliance with the provision of Section 126(2) of the Act, 2003, rather it will be said to be a direction to make immediate payment of the penal amount in exercise of power under Clause 105 of the Supply code, 1998. The petitioner has not brought on record any material that against the provisional assessment any opportunity of hearing has been provided to the consumer as provided U/s.126(2) and 126(3) and further no order U/s.126(5) has been brought on record. It is evident from the provision of Section 127 of the Act, 2003 that the order is to be entertained by the authority against an order passed U/s.126 of the Act, 2003 but here there is no order U/s.126 of the Act, 2003, as such the order impugned cannot be said to be an order in exercise of power conferred U/s.127 of the Act, 2003, however, the authorities have passed the order questioning the penal bill but that cannot be considered as an order U/s.127 since no order has been passed by the authority in exercise of power conferred under Section 126 of the Act, 2003. In view of such discussion and taking into consideration the implication of the provision of Act, 2003 and its enactment w.e.f. 10th June, 2003 and also considering the fact that the inspection was conducted on 18.8.2003, hence the authority ought to have proceeded in consonance with the provision of Act, 2003, i.e. in terms of the provision of Section 126 but the same having not been done, the entire action of the authority is held to be illegal. In the result the matter is remitted before the competent authority to provide an opportunity to the consumer by serving the provisional assessment, which shall be responded by the consumer, the same will be decided by the authority in exercise of power conferred U/s.126(5) of the Act, 2003 in accordance with law. It is directed that the entire exercise shall be completed within eight weeks from the date of receipt of copy of this order. With the above observation and direction both the writ petitions stand disposed of.