JUDGMENT : Heard Mr. B.D. Das, learned Senior Counsel assisted by Ms. K. Deka learned counsel for the petitioner i.e. APDCL. Also heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. S. Todi, learned counsel for the respondent No.2. 2. The respondent No.1 is the Appellate authority for APDCL and the learned Senior counsel for both sides have submitted that at present the authority has not been constituted. Nonetheless, none appears for the respondent No.1. 3. In this writ petition, the petitioner has challenged the legality of the order dated 26.03.2012 passed by the respondent No.1 exercising the power under section 127 of the Electricity Act, 2003 in Appeal No.1/2012 as well as the order dated 23.05.2012 passed by the said Appellate authority in Review petition arising out of the order dated 26.03.2012. By the aforesaid order, the respondent No.1 had interfered with the assessment bill dated 06.12.2011 raised by the petitioner on the respondent No.2 despite finding that against the sanctioned load of 3193.22 KW, the respondent No.2 Company was found to be having a total connected load of 4085.781 KW which was found in course of inspection carried out on 28.11.2011 and 29.11.2011. 4. Although the learned Senior Counsel for both sides have made elaborate argument in the matter, but it would be sufficient to record that the petitioner has assailed the order passed by the Appellate authority, amongst others, on the ground that the action taken by the petitioner for carrying out inspection and the consequent issuance of the assessment bill was done in terms of the provision of section 126 of the Electricity Act, 2003 but the Appellate Authority had interfered with the assessment bill by holding that the respondent No.2 had no malafide intention in having such excess connected load and therefore, the said assessment bill was held as unwarranted and ordered to be withdrawn. And therefore, it is projected that the direction to the respondent No.2 was not in consonance with the provisions of section 126 of the Electricity Act, 2003 as well as Clause 5.A.4.1, of the Terms and Condition of Supply. 5. In support of his submission, the learned Senior counsel for the petitioner has relied on the case of Executive Engineer, Southern Electricity Supply Company of Orissa Ltd (SOUTHCO) and another Vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 (Para 87) as well as in the case of Dr. 5. In support of his submission, the learned Senior counsel for the petitioner has relied on the case of Executive Engineer, Southern Electricity Supply Company of Orissa Ltd (SOUTHCO) and another Vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108 (Para 87) as well as in the case of Dr. Muhammedali T.K. Vs. Kerela State Electricity Board, WP(C) 26192/13 (Y) decided on 09.12.2013 to project that wherever consumer committed breach of the terms of the agreement, regulations and the provisions of the Act by consuming electricity in excess of the sanctioned and the connected load, such consumer would be “in blame and under liability” within the ambit and scope of section 126 of the 2003 Act, and that the High Court should normally decline to interfere in a final order of assessment passed by the Assessing Officer in terms of section 126(3) of the 2003 Act, in exercise of its jurisdiction under Article 226 of the Constitution of India. 6. On the contrary, opposing this writ petition, the learned Senior counsel for the respondent No.2 has submitted that the respondent No.2 had installed some new eco-friendly equipment as a pollution control measure, which was under trial run since March 2011 and the excess load drawn was detected by the petitioner in March 2011 when the machine was installed and therefore, by referring to sub-section 5 of section 126 of the Electricity Act, 2003 it is submitted that the assessment made by calculating the period of unauthorized use of electricity for 12 months was not sustainable and it is further submitted that it was the admitted case of the petitioner that for excess drawal of electrical energy with effect from March 2011 to November 2011, the date of inspection, over drawal penalty was already levied and realized by the petitioner and, as such, the said amount was liable to be adjusted against the assessment bill, otherwise it would amount to the levy of penalty charges on the respondent No.2 twice, first on account of excess drawal penalty and secondly on account of assessment bill. 7. Although, other submissions are made, at this stage this Court is not inclined to elaborately deal with the objection because on the aforesaid ground agitated by the learned Senior Counsel for both sides, it appears to this Court that the Appellate authority for APDCL had not dealt with the said points. 8. 7. Although, other submissions are made, at this stage this Court is not inclined to elaborately deal with the objection because on the aforesaid ground agitated by the learned Senior Counsel for both sides, it appears to this Court that the Appellate authority for APDCL had not dealt with the said points. 8. Accordingly, it appears to this Court that the respondent No.1 was required to restrain itself in answering as to whether the assessment bill raised by the petitioner was valid or not and the finding recorded to the effect that there was no malafide intention of the respondent No.2, which could not have been gone into by the said authority as well as direction to pay fix charge on the excess load of 4085.781 KW detected which is found to be outside the scope of section 127 of the Electricity Act, 2003. 9. Accordingly, on these two grounds, this Court is inclined to set aside the order dated 26.03.2012 passed by the Appellate Authority, APDCL in Appeal No.1/2012. 10. In view of the grievance projected by the learned Senior counsel for the respondent No.2 and considering the fact that by setting aside the said appellate order, the assessment bill has come to life, this Court, having noticed that the Appellate authority of APDCL has not been appointed as on date, this is a fit case to relegate the parties back to the Assessing Officer, APDCL, Badarpurghat Electrical Sub-Division who would grant an opportunity of hearing to both sides within a period of 3(three)weeks from the date of receipt of a certified copy of this order and thereafter, pass appropriate order thereon in accordance with law within a period of 2(two) weeks thereafter. 11. 11. No fresh notice would be required to serve on the parties as both the parties are duly represented by the learned counsel and they would appear before the Assessing Authority without any further notice of appearance on 20.02.2019and the said authority will fix a date for hearing and while, passing a final order, the Assessing Authority shall take into consideration the points raised by the respondent No.2 about adjustment on excess drawal penalty with the assessment bill, as well as the point that as excess load was detected from March, 2011 to November, 2011 the period of excess drawal of electricity energy ought to be calculated on the basis of the period of such excess drawal and not on fixed periodical basis of 12 months and the hearing would be restricted on these 2 points only in view of the law laid down in the above referred cases. 12. It is needless to say that whatever payment has been made by the respondent No.2, shall be subject to the outcome of the fresh hearing to be done by the Assessing Officer. If the parties still feel aggrieved, it would be open to them to take re-course to statutory remedy as permitted in accordance with law.