JUDGMENT : Jyotirmay Bhattacharya, J. 1. The writ petitioner is a centralized bulk high voltage consumer of Hooghly region of WBSEDCL in respect of its factory at Bhadreswar in the district of Hooghly having a contract demand of 1450 KVA on 20th October, 2016. An inspection was held by a team comprising of superintending engineer, divisional engineer, divisional engineer (manager), assistant engineer, Chandanangore division of assistant engineer Burdwan zone testing at the factory premises of the writ petitioner. It was reported by the inspecting team that input current is abnormally high from output current at TTB end in respect of R and P phase PT secondary wires. It was further mentioned that from load survey data on installed meter (seen in laptop), B phase current occasionally found abnormally lower than B phase current. It is also mentioned in the said report that after break open of TTB, foreign material found inside the same. The said inspection team opined that there was theft of energy and the means of theft was insertion of foreign material inside the TTB of WBSEDCL. Three phase meter and the metering equipments were all seized by the inspection team. A seizure list was prepared. On the next following day, provisional assessment of un-metered consumption was made by one Mr. B. Saha SE and assessing officer WBSEDCL. As per the provisional assessment made by the said assessing officer, a sum of Rs.134,117,482.30 was payable by the said consumer. Such provisional assessment was made by the assessing officer under the provision of sub-Section 1 of Section 126 of the Electricity Act, 2003. Simultaneously a criminal complaint was lodged with the local police station by the superintending engineer (Commercial) Hooghly region WBSDECL complaining theft of energy (property of WBSEDCL) by inserting a foreign material to pilfer energy and to interfere with the accurate registration of consumption in energy meter with dishonest intention. Such complaint was lodged by the said superintending engineer (commercial) as he was of the view that Biswarup Paul, proprietor of M/s. Orion Metal Pvt. Ltd. , Bighati, Delhi Road P.S Bhadreswar, Dist. Hooghly, dishonestly inserted foreign material inside the TTB by damaging it for not registering the actual consumption of energy in the installed energy meter. The said superintending engineer (commercial) thus, held that the said Mr. Paul committed offence under Section 135(1) (b) (C) of the Electricity Act, 2003. 2. Hooghly, dishonestly inserted foreign material inside the TTB by damaging it for not registering the actual consumption of energy in the installed energy meter. The said superintending engineer (commercial) thus, held that the said Mr. Paul committed offence under Section 135(1) (b) (C) of the Electricity Act, 2003. 2. On the basis of such complaint made by the superintending engineer (commercial) a criminal case has already been initiated and the police has submitted the charge-sheet in the said criminal case. 3. Being aggrieved by and dissatisfied with the provisional assessment made by the assessing officer, the instant writ petition was filed by the writ petitioners/appellants questioning the jurisdiction of the assessing officer to make this provisional assessment in the instant case. It is contended by the petitioners/appellants that the assessing officer, who prepared the provisional assessment, being not a part of the inspection team, had no authority to make this provisional assessment under Section 126(1) of the Electricity Act, 2003. It is contended by the petitioners/appellants that it is only when after holding an inspection at the factory site and the metering system and the electrical gadgets installed therein and after consulting the records maintained by any person, the assessing officer comes to the conclusion that the consumer indulged any unauthorised use of electricity, he shall provisionally assess to the best of his judgment, the electricity charges payable by such person or any other person benefited by such use. It is contended by the petitioners/appellants that the provisional assessment can be made by the assessing officer when he comes to the conclusion that the consumer is indulging any unauthorised use of electricity. According to the petitioners/appellants, the provisional assessment having not been made in consonance with the provision of Section 126(1) of the said Act, such assessment cannot be given any effect to. 4. In course of hearing of the writ petition, the respondent-Distribution Company could not produce any material to show that the assessing officer was a part of the inspection team. The provisional assessment, which was made by the assessing officer also does not disclose that such provisional assessment was made by the assessing officer after recording his satisfaction that the consumer was indulging any unauthorised use of electricity and, as a result, provisional assessment of un-metered consumption is necessary. 5. The provisional assessment, which was made by the assessing officer also does not disclose that such provisional assessment was made by the assessing officer after recording his satisfaction that the consumer was indulging any unauthorised use of electricity and, as a result, provisional assessment of un-metered consumption is necessary. 5. The learned single judge while deciding the writ petition also came to the conclusion that the assessing officer was not a part of the inspection team. It was held by the learned single judge that the assessing officer should be a part of the inspection team and the inspection made by a team in the absence of the assessing officer is not contemplated under Section 126 of the Electricity Act, 2003. Since the assessing officer was not a part of the inspection team, the learned single judge ultimately concluded that the assessment which was made by the assessing officer was not made by the assessing officer by following the provisions contained in Section 126 of the Electricity Act, 2003. As such, the provisional assessment was quashed. However, the learned single judge was of the view that the consumer, who was benefited by such un-metered consumption due to indulging any unauthorised use of electricity cannot be caught free. As such, the learned single judge directed the State Government to appoint any of the member of the said inspection team as assessing officer, even for a limited period of time or even for this particular case to make a fresh provisional assessment and then a final assessment in this case. The legality and/or propriety of the said order passed by the learned single judge of this court on 15th December 2016 in W.P. No. 30449 (W) of 2016 is under challenge in this Mandamus Appeal at the instance of the writ petitioners/appellant. 6. Before entering into the merits of this mandamus appeal, we like to mention here that following the order of the learned single judge passed in the said writ petition, a member of the said inspection team was appointed as an assessing officer by the State Government and the said assessing officer provisionally assessed such un-metered consumption of electricity energy and subsequently upon notice to the writ petitioners/appellants final assessment for such un-metered consumption as made by the assessing officer. 7. 7. The legality of such assessment made by the said assessing officer has been challenged by the writ petitioners/appellants in this appeal by filing an inter locutory application in this appeal. 8. It is contended by the writ petitioners/appellants that the assessment which was so made by the assessing officer cannot be given effect to as such assessment was not done by the assessing officer after recording his satisfaction that the consumer indulged in unauthorised use of electricity. According to the writ petitioners/appellants, the assessing officer was required to come to the definite conclusion that the consumer indulged in unauthorised use of electricity. According to him, recording such conclusion is precondition for making provisional assessment of un-metered consumption under Section 126(1) of the said Act. The writ petitioners/appellants thus contends that since such assessment was made without recording the satisfaction of the assessing officer that the consumer indulged in unauthorised use of electricity, the assessment is vitiated and such assessment cannot be given any effect. 9. In this background, a question has cropped up as to whether two parallel proceedings for assessment can be proceeded with simultaneously. Such question is raised before us as here is the case where we find that not only an assessment of un-metered consumption was made by the assessing officer under Section 126 of the Electricity Act, 2003 but simultaneously a criminal proceeding has been initiated on the allegation of commission of theft of energy under Section 135 of the said Act. 10. To find out an answer to the said question, we have considered various provisions of the said Act, namely, Section 126, Section 135(1)(a), Section 153 and Section 154 of the said Act. 11. Giving our anxious consideration to all those provisions of the said Act, we are of the view that in case a complaint is lodged against the consumer for commission of theft of energy as per the provision contained in Section 135 of the said Act, such complaint is required to be considered by the Special Court constituted under Section 153 of the said Act by following the modalities as prescribed under Section 154 of the said Act. 12. Section 154 of the said Act authorises the Special Court to pass a sentence of imprisonment for a term not exceeding five years in a case where conviction is given in summery trial under the said Section. 12. Section 154 of the said Act authorises the Special Court to pass a sentence of imprisonment for a term not exceeding five years in a case where conviction is given in summery trial under the said Section. Sub-section (5) of Section 154 of the said Act provides that when a consumer is found to be guilty of theft of energy, the civil liability against the consumer or the person responsible for such theft, loss of un-metered consumption on account of theft of energy will be assessed by the Special Court by following the modalities as prescribed under the said provision. It is provided therein that amount of civil liability which will be so determined by the Special Court will be recovered as if it was a decree of civil court. Sub-Section (6) of Section 154 of the said Act provides that in case a civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person responsible for theft, the accessed amount so deposited by the consumer or such 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 by the Special Court together with the interest at the prevailing Reserve Bank of India prime lending rate for the period of such deposit till the date of payment. 13. What is meant of civil liability was clarified in the explanation added to sub-section (6) of Section 154 of the said Act, which runs as follows:- 14. Explanation:- For the purpose of this section, “civil liability” means loss or damages incurred by the Board of licensee or the concerned person, as the case may be, due to commission of an offence referred to in Sections 135 to 140 and Section 150. 15. On reading the provision of sub-section (6) of Section 154 of the said Act, we find that a provision of adjustment is contemplated under the said provision in a case whether the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person guilty of theft. 15. On reading the provision of sub-section (6) of Section 154 of the said Act, we find that a provision of adjustment is contemplated under the said provision in a case whether the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person guilty of theft. We do not find any other provisions save and except the provision contained in Section 135 (1)(A) of the said Act, which authorises the licensee or supplier, as the case may be, to restore the supply of electricity on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of the said Act. Apart from Section 126 of the said Act, we do not find any other provisions in the said Act under which the un-metered consumption can be assessed. 16. Thus on conjoint reading of the provisions contained in Section 154, Section 135(1)(A) and Section 126 of the said Act, it appears to us that it is only when a criminal complaint is lodged, alleging theft of energy by the consumer or any other person and the supply of electricity is disconnected for such offence being committed by the consumer or any other person, such un-metered consumption can be assessed under Section 126 of the said Act by the assessing officer when the consumer approaches the licensee for restoration of its supply on agreeing to deposit the assessed amount of un-metered consumption. 17. Here is the case where we find that the supply of electricity was disconnected by the respondent-licensee. The writ petitioners/appellants did not apply for restoration of its supply. As such, assessment of un-metered consumption provisionally or finally ought not to have been done by the assessing officer. 17. Here is the case where we find that the supply of electricity was disconnected by the respondent-licensee. The writ petitioners/appellants did not apply for restoration of its supply. As such, assessment of un-metered consumption provisionally or finally ought not to have been done by the assessing officer. The only course, which is left open to the licensee in case of theft of energy is to follow up the proceeding before the criminal court and in case the licensee succeeds in establishing that the consumer and/or of such person was guilty of commission of theft of energy, the consumer and the person will be liable to be punished and it is only under such circumstances the civil liability of the consumer and/or of such person will be assessed by the Special Court by following the provision contained in sub-section (5) of Section 154 of the Electricity Act, 2003 and once such assessment is made by the Special Court, such assessed amount will be recoverable from the consumer and/or the person responsible for such theft as if such determination is a decree of the civil court. 18. Thus, we have no hesitation to hold that when a complete code is prescribed not only for trial of the criminal offence i.e. theft of energy but also for determination of the civil liability on account of loss of un-metered consumption due to theft in part XIV of the Electricity Act, 2003, the licensee , in our view, cannot simultaneously proceed for assessment of the un-metered consumption either provisionally or finally in terms of the provision contained in Section 126 of the said Act unless the consumer applies for restoration of supply of electricity following the third proviso of sub-Section (1) (A) of Section 135 of the said Act. 19. In these set of facts, we hold that since the Special Court is now in seisin over the complaint case, the assessment which was made by the assessing officer under Section 126 of the said Act on the basis of the order passed by the learned Single Judge of this court cannot be held to legally made in the instant case. The said assessment is thus, quashed. 20. The said assessment is thus, quashed. 20. Before parting with we like to mention here that another question has cropped up before us as to whether the licensee can fall upon the provision under Section 126 of the said Act for assessing the un-metered consumption under Section 126 of the said Act after being unsuccessful in establishing the allegation of theft energy by consumer and/or any other person before the Special court. 21. It is no doubt true that if it is found that un-metered energy was bypassed not an account of any dishonest manipulation amounting to theft by the consumer or other person, the licensee can assess such un-metered consumption by taking aid of Section 126 of the said Act in a case where the licensee makes out an alternative case of bypassing electricity in any of the situation contemplated under Section 126 of the said Act besides lodging a complaint of theft with the police authority by following the provision of Section 135 of the said Act. Even in case of un-metered consumption due to defect in the meter such consumption can be assessed by following the regulation, viz., the West Bengal Electricity Regulatory Commission (Electricity supply ‘Regulation”) 2013. 22. Here is the case where we find that a definite case of theft was made out by the licensee against the consumer. No case has been made out even in the alternative form as contemplated under Section 126 of the said Act and as such, in case the licensee fails to establish the allegation regarding commission of theft in the instant case, the licensee in our view, cannot fall upon the provision under Section 126 of the said Act for making fresh assessment of un-metered consumption other than theft. 23. Since the criminal case is pending before the Special Court, we make it clear that the said criminal proceeding will be tried by the Special Court on its own merit. We also make it clear that while disposing of this appeal we have not considered the correctness of the complaint regarding theft or energy by the consumer and as such the learned Special Court is absolutely free to decide the same independently on the basis of material be placed before it. 24. The impugned order is thus, set aside. The appeal is thus, allowed. 25. 24. The impugned order is thus, set aside. The appeal is thus, allowed. 25. Since the appeal is dismissed, the applications filed in connection with this appeal are deemed to be disposed of. 26. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.