JUDGMENT : Ujjal Bhuyan, J. 1. This order will dispose of all the 3 (three) writ petitions, i.e., WP(C) Nos. 932, 2992 and 3048 of 2017. 2. Heard Mr. S.K. Kejriwal, learned counsel for the petitioners and Mr. A.D. Choudhury, learned Standing Counsel, Assam Power Distribution Company Limited (APDCL) 3. In WP(C) No. 932 of 2017, primary challenge is to the assessment order dated 04.02.2017, affirming the provisional assessment of Rs. 54,40,979.00 as dues to be paid by the petitioner as well as the consequential bill dated 04.02.2017. 4. In WP(C) No. 2992 of 2017, the challenge made is to the assessment order dated 06.05.2017, assessing the dues payable by the petitioner at Rs. 65,28,996.00 and consequential bill dated 06.05.2017. 5. In WP(C) No. 3048 of 2017, the challenge is to the provisional assessment order dated 24.04.2017, whereby an amount of Rs. 89,17,513.00 has been assessed to be due from the petitioner. 6. In all the writ petitions, while issuing notice this Court had passed interim orders to the effect that on payment of 25% of the assessed amounts, electricity connection to the premises of the petitioners should be restored. 7. Respondents have filed separate affidavits in all the three cases. In WP(C) Nos. 932 and 2992 of 2017, stand taken is that the final assessment orders were passed under Section 126 (3) of the Electricity Act, 2003, which is an appealable order under Section 127 of the Electricity Act, 2003 (2003 Act). Since there is adequate and efficacious alternative remedy available, writ petition would not be maintainable. In so far WP(C) No. 3048 of 2017 is concerned, it is stated that the impugned assessment is only a provisional one under Section 126(1) of the 2003 Act. Petitioner would have the liberty to raise objection against the provisional assessment and only after hearing the petitioner final assessment would be made under Section 126 (3) of the 2003 Act. Therefore, this writ petition is premature. 8. For the sake of convenience, facts pleaded in WP(C) No. 932 of 2017 may be adverted to. 9. Case of the petitioner is that it is engaged in the business of manufacture and sale of tea Inspection of the electrical installation in the premises of the petitioner were carried out by personnel belonging to the APDCL on 05.01.2017. 8. For the sake of convenience, facts pleaded in WP(C) No. 932 of 2017 may be adverted to. 9. Case of the petitioner is that it is engaged in the business of manufacture and sale of tea Inspection of the electrical installation in the premises of the petitioner were carried out by personnel belonging to the APDCL on 05.01.2017. The inspection team found the meter cabinet box outer seal cut and re-fixed with glue during meter reading. Therefore, inspection team took the view that it was a case of tampering of the meter. Following the same, the meter was sealed and, thereafter, seized. Petitioner was informed by APDCL authorities on 05.01.2017 that evidence revealed that it was directly or indirectly involved in the act of malpractice as defined in Clause 5.A.4.1 of the Assam Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2004 (First Amendment), 2007 (Regulations). Accordingly, electricity supply to the premises of the petitioner was discontinued. 10. Area Manager, Dibrugarh Industrial Revenue Collection Area, APDCL, thereafter, made the provisional assessment of the petitioner on 06.01.2017, quantifying an amount of Rs. 54,40,979.00 as the amount due by the petitioner. 11. The authority of APDCL also lodged written complaint before the Officer-In-charge, Special Police Station, APDCL, alleging theft of electricity by the petitioner under Section 135 of the 2003 Act. On the basis of such complaint, Special PS Case No. 17/2017 was registered under Section 135 of the 2003 Act. 12. Against the provisional assessment, petitioner submitted objection before the Area Manager and also sought for assistance of professional lawyer at the time of hearing prior to passing of final assessment order. Petitioner was informed by the Area Manager on 20.1.2017 that as per decision of the competent authority of APDCL, there is prohibition in the appearance of professional lawyer during hearing against provisional assessment bill and, therefore, petitioner was requested to attend the hearing personally or through representative. 13. Following the hearing, Area Manager acting as the Assessing Officer passed the final assessment order dated 04.02.2017, affirming the provisional assessment of the petitioner. However, petitioner was informed that it could approach the appellate authority, if it was so advised. The final assessment was immediately followed by bill dated 4.2.2017, calling upon the petitioner to pay the assessed amount. 14. Following the hearing, Area Manager acting as the Assessing Officer passed the final assessment order dated 04.02.2017, affirming the provisional assessment of the petitioner. However, petitioner was informed that it could approach the appellate authority, if it was so advised. The final assessment was immediately followed by bill dated 4.2.2017, calling upon the petitioner to pay the assessed amount. 14. Aggrieved by the aforesaid, petitioner has assailed the legality and correctness of the final assessment order and the consequential bill by filing the present writ petition under Article 226 of the Constitution of India. 15. As noticed above, this Court while issuing notice had passed interim order to the effect that electricity supply to the premises of the petitioner should be restored on payment of 25% of the assessed amount. 16. It is submitted at the Bar that the aforesaid amount has been paid by the petitioner, whereafter, electricity supply to the premises of the petitioner has been restored. 17. Mr. S.K. Kejriwal, learned counsel for the petitioners in the course of his extensive arguments had highlighted the following core submissions:- (1) The final assessment order is bad in law, inasmuch as there is no finding on record by the Assessing Officer that there was unauthorized use of electricity by the petitioners. Finding of unauthorized use of electricity is a sine qua non for invoking of power under Section 126 of the 2003 Act. In the absence thereof, the assessment order would be nonest in the eye of law. Related contention is that the provisional assessment was not as per requirement of Section 126 of the 2003 Act, inasmuch as, no Rule has been framed by the Government of Assam, in this regard, as per requirement of Section 180 (2) (k) of the 2003 Act. (2) Another contention advanced by Mr. Kejriwal is that when a proceeding is initiated under Section 126 of the 2003 Act, a parallel proceeding under Section 135 of the said Act would not be permissible. Section 126 and Section 135 of the 2003 Act operate in different fields; while in the former it is a case of unauthorized use of electricity, in the later, it is a case of theft of electricity, which is within the domain of criminal jurisdiction. Therefore, parallel proceedings are not permissible. On this ground itself, the proceedings initiated under Section 126 is liable to be set aside. (3) Mr. Therefore, parallel proceedings are not permissible. On this ground itself, the proceedings initiated under Section 126 is liable to be set aside. (3) Mr. Kejriwal has also highlighted that in a technical and highly complicated matter such as this, assistance of professional lawyer becomes essential for proper defence of the consumer of electricity. Therefore, in the fact situation of the case, refusal of the authority to allow assistance of professional lawyer amounts to denial of fair opportunity, thus, leading to violation of the principles of natural justice. 17.1. In support of his submissions, Mr. Kejriwal has referred to and relied upon a large number of decisions. 18. On the other hand, primary contention of Mr. Choudhury, learned Standing Counsel, APDCL is that the final assessment order passed under Section 126 (3) of the 2003 Act is an appealable order under Section 127 of the 2003 Act. In view of availability of alternative remedy of appeal, writ petition should not be entertained, he contends. Another contention of Mr. Choudhury is that although proceedings under Sections 126 and 135 of the 2003 Act operate in different fields, the authority can simultaneously proceed against a consumer, there is no legal bar to such parallel proceedings. 19. Responding to such submissions, Mr. Kejriwal submits that if it is a case of theft of electricity as is being contended by the respondents, it would be a proceeding under Section 135 of the 2003 Act. As a matter of fact, respondents have filed a complaint under Section 135 of the 2003 Act. If that be the position then a proceeding under Section 126 would not be maintainable. If it is not a case under Section 126 of the 2003 Act, question of filing appeal under Section 127 would not arise. 20. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 21. Section 126 of the 2003 Act is under Part-XII of the said Act, dealing with investigation and enforcement. Section 126 specifically deals with assessment. 20. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 21. Section 126 of the 2003 Act is under Part-XII of the said Act, dealing with investigation and enforcement. Section 126 specifically deals with assessment. As per Sub-Section-(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. 22. While Sub-Section (2) deals with service of such provisional assessment, Sub-Section (3) deals with final order of assessment. As per Sub-Section (3), the person against whom provisional assessment is made shall be entitled to file objection against the provisional assessment before the Assessing Officer, who may after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. 23. Sub-Sections (4), (5) and (6) deal with payment as per provisional assessment, manner of making such payment and rate of tariff to be applied while making such assessment. As per explanation (b), "unauthorized use of electricity" means the usage of electricity by any artificial means or by means not authorized by the concerned person or authority or licensee, or through a tampered meter or for the purpose other than for which the usage of electricity was authorized. In so far the present case is concerned, Sub-Sections- (1), (3) and explanation (b) of Section 126 are relevant. Section 126 in its entirety is quoted hereunder:- "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 a notice has been served under sub-section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who 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. (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: (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 the section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). Explanation- For the purposes of this section,- (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b)"unauthorized use of electricity" means the usage of electricity- (i) By any artificial means; or (ii) By a means not authorized 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 authorized; or (v) for the premises or areas other than those for which the supply of electricity was authorised." 24. A careful analysis of Section 126 of the 2003 Act would indicate that it is a self-contained code. A careful analysis of Section 126 of the 2003 Act would indicate that it is a self-contained code. In the course of inspection of electrical installation of a consumer, if the Assessing Officer comes to the conclusion that such person is indulging in "unauthorized use of electricity" he would make provisional assessment to the best of his judgment of the electricity charges payable by such person. If that person pays the electricity charges so assessed, the matter ends there and no further action is contemplated. If, however, the person objects, the Assessing Officer shall provide reasonable opportunity of hearing to the person concerned and, thereafter make the final assessment in the manner provided under the Sub-Sections (5) and (6). "Unauthorized use of electricity" has been defined in Explanation (b) under Section 126 of the 2003 Act. 25. On the other hand, theft of electricity is defined under Section 135, which comes under Part-XTV of the 2003 Act, dealing with offences and penalties. As per Section 135 (1), whoever, dishonestly taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or (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) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed so as to interfere with the proper or accurate metering of electricity, or (d) uses electricity through tampered meter, or (e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to 3 (three) years or with fine or with both. 26. While Section 126 deals with assessment, Section 135 deals with criminal prosecution and penalty. Jurisdiction under Section 126 can be invoked if the Assessing Officer comes to the conclusion that the person concerned is indulging in "unauthorized use of electricity", whereas, criminal prosecution can be launched against a person under Section 135 if he commits theft of electricity. 26. While Section 126 deals with assessment, Section 135 deals with criminal prosecution and penalty. Jurisdiction under Section 126 can be invoked if the Assessing Officer comes to the conclusion that the person concerned is indulging in "unauthorized use of electricity", whereas, criminal prosecution can be launched against a person under Section 135 if he commits theft of electricity. 27. Dealing with the scope and ambit of Section 126 of the 2003 Act and the distinction between Sections 126 and 135 of the 2003 Act, a three Judges Bench of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (South CO) Vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 , has held that there are marked differences in the contents of Section 126 and Section 135 of the 2003 Act. They are distinct and different provisions which operate in different fields and have no common premise in law. While Section 135 deals with theft of electricity, which is a punishable offence; Section 126 would be applicable to cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices, which may fall within the sweep of the expression "unauthorized use of electricity". While Section 135 squarely falls within the dimensions of criminal jurisprudence where mens rea is one of the relevant factors for determining a case of theft; Section 126 does not speak of any criminal intendment and is primarily a civil action. It does not have features or elements which are traceable to the criminal concept of mens rea. Pausing here for a moment, from a careful analysis of the provisions of Section 126 vis-a-vis Section 135 of the 2003 Act, as held by the Supreme Court, what is deducible is that both Sections 126 and 135 are in contradiction to each other. Section 126 of the 2003 Act would be applicable to cases where there is no theft of electricity but the electricity is being consumed in an unauthorized manner but where there is dishonest theft of electricity, Section 135 would come into play. Therefore, a proceeding initiated under Section 135 and a proceeding under Section 126 on the same grounds may not be legally sustainable. Summing up the position, Supreme Court held as follows:- "30. Therefore, a proceeding initiated under Section 135 and a proceeding under Section 126 on the same grounds may not be legally sustainable. Summing up the position, Supreme Court held as follows:- "30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act." 28. Adverting to Section 126 of the 2003 Act, the expression "unauthorized use of electricity", which the Supreme Court has held to mean use of electricity by means or for the reasons stated in sub-clauses (i) to (v) of clause (b) of the Explanation to Section 126 of the 2003 Act, which cannot be construed as exhaustive. Supreme Court has further held that the expression "unauthorized use of electricity" cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so as to cover cases of violation of the terms and conditions of supply, the provisions of the 2003 Act and the Regulations governing such supply. "Unauthorized use of electricity" is an expression which would, on its plain reading, take within its scope misuse of electricity supply or even malpractices adopted while consuming electricity but without any dishonest intention or mens rea. 29. Reverting back to the inspection report dated 05.01.2017, it is seen that the inspection team found the meter cabinet box outer seal cut and re-fixed with glue during meter reading. When the meter was opened, one steel plate was found missing and some locally soldering spots were found in the CT connecting points in circuits inside the meter. The inspection team decided that it was a fit case for tampering of the meter considering the above findings. When the meter was opened, one steel plate was found missing and some locally soldering spots were found in the CT connecting points in circuits inside the meter. The inspection team decided that it was a fit case for tampering of the meter considering the above findings. In the final assessment order dated 04.02.2017, it is seen that statement of the inspection team was recorded, whereafter, view was taken that petitioner had adopted malpractice by tampering of the energy meter. While submission of written objection by the petitioners was noted, no finding was recorded thereon. Relevant portion of the final assessment order dated 4.2.2017 is extracted hereunder:- "The consumer M/s. Rajashree Tea Industry, Ghooronia, Dibrugarh has submitted written objection for debarring advocate in the hearing and also submitted contentious in issues seeking reason finding. Statement of T & C Division personnel The AGM, T & C Division submitted a DVD containing video along with mentioning 3-points in respect of ground of case, i.e., 1. Metering installation is situated inside the factory premises. To reach the metering installation, the inspection team had to pass through two gates which were opened by consumer's personnel. 2. The inspection was carried out in presence of consumer. 3. The forensic tests of the tampered seals and tampered meter which is lying under police custody (Special Police Station, APDCL, Dibrugarh may be conducted as desired by the consumer. Also the consumer was shown the normal meter with steel plate by AGM, T & C which was found missing in consumer's meter during inspection on 05.01.2017. From above, it was seen the consumer adopted malpractice by tampering of the energy meter (ASE60737). Also regarding written objections submitted by the appellant for considering assessment period 27.7.2016 to 5.1.2017, it may be stated that, the MRI downloaded on 27.07.2016 does not reveal information of meter cover open, as the meter was Non-DLMS. Hence, malpractice period could not be ascertained. So no relief can be allowed in the provisional bill served for 12 (twelve) months as per clause under interference with metering system of electricity supply code. Hence, provisional bill amounting to Rs. 54,40,979.00 is already served and may be treated as final. The consumer, however, may approach the Appellate Authority, if so desire." 30. So no relief can be allowed in the provisional bill served for 12 (twelve) months as per clause under interference with metering system of electricity supply code. Hence, provisional bill amounting to Rs. 54,40,979.00 is already served and may be treated as final. The consumer, however, may approach the Appellate Authority, if so desire." 30. On a thorough consideration of the matter, in the considered opinion of the court, the final assessment order dated 04.02.2017 so framed cannot be sustained in law for the simple reason that there is no finding, prima facie or otherwise, that there was "unauthorized use of electricity" by the petitioners as provided under Explanation (b) to Section 126 of the 2003 Act. Recording of or arriving at a finding that there was "unauthorized use of electricity" by the concerned person is a condition precedent for invoking jurisdiction under Section 126 of the 2003 Act. In the absence of such a finding, the final assessment order would stand vitiated because the Assessing Officer would stand divested of his jurisdiction if it is not a case of "unauthorized use of electricity". That apart, at the time of passing of final assessment order under Section 126 of the 2003 Act, reasonable opportunity of hearing has to be afforded to the aggrieved person. Though contention of having the assistance of a legal practitioner may be a far-fetched proposition, the Assessing Officer is under a legal obligation to give a reasonable opportunity of hearing to the affected person. The final assessment order does not disclose that any such opportunity was granted to the petitioner. Moreover, though a detailed or long drawn order may not be necessary, the final assessment order having regard to the mandate of Section 126 (3) must speak for itself or it must indicate as to why the final assessment was made and in what manner the objection of the affected person was considered. In the absence of the above, it cannot be said that reasonable opportunity of hearing was granted to the affected person. 31. In the light of the above discussions, Court is of the view that final assessment orders dated 04.02.2017 and 06.05.2017 in WP(C) Nos. 932 and 2992 of 2017 cannot be sustained. Those are accordingly set aside. Matters are remanded back to the Assessing Officer to re-consider the objections raised by the petitioners, keeping in mind the discussions made above. 32. In the light of the above discussions, Court is of the view that final assessment orders dated 04.02.2017 and 06.05.2017 in WP(C) Nos. 932 and 2992 of 2017 cannot be sustained. Those are accordingly set aside. Matters are remanded back to the Assessing Officer to re-consider the objections raised by the petitioners, keeping in mind the discussions made above. 32. In so far WP(C) No. 3048 of 2017 is concerned, petitioner shall file its objection to the provisional assessment order dated 24.4.2017. The Assessing Officer shall, thereafter, pass necessary orders having regard to the objections that may be filed by the petitioner and keeping in mind the discussions made in this order. 33. In view of the above findings, it is considered not necessary to adjudicate on the other issues raised by the petitioners. 34. All the 3 (three) writ petitions are accordingly disposed of.