JUDGMENT : Sudhir Agarwal and Rajeev Misra, JJ. 1. This writ petition under Article 226 of the Constitution of India has been filed by Purvanchal Vidyut Vitran Nigam Ltd. through its Managing Director (hereinafter referred to as "PVVNL') and its Executive Engineer, Electricity Urban Distribution Division, Gorakhpur (hereinafter referred to as "EE, EUDD, Gorakhpur") assailing order dated 28th August, 2018 passed by Electricity Consumer Grievance Redressal Forum, Gorakhpur (hereinafter referred to as "ECGRF") rejecting petitioner's application for recall of order dated 16.6.2017, passed ex parte by respondent No. 2. Petitioners have also challenged the order dated 5.6.2007 passed by respondent No. 2, ECGRF originally whereby on the complaint of respondent No. 3, respondent No. 2 has held that petitioners have illegally recovered ` 96,320/- from respondent No. 3 and is bound to refund same and has consequently issued direction for refund of said amount alongwith interest at the rate 6% per annum. 2. Facts in brief giving rise to present writ petition are that M/s. Navya Motors situated at Mohalla Nausad, Sadar Gorakhpur has a commercial electric connection with contracted load of 20 kilowatt bearing SC No. 5360049295. Rate schedule for that purpose of computation of electricity consumption charges payable by consumer i.e., respondent No. 3 is governed by Tariff, LMV2. For recording quantum of consumption of electricity, electronic computerized meter No. UPU20183 was installed at premises of respondent No. 3 i.e., Consumer. 3. On 21.1.2017 an inspection was carried out at the premises of Consumer by E.E., EUDD, Gorakhpur pursuant to Chief Engineer (Distribution) Gorakhpur's (hereinafter referred to C.E.(D), Gorakhpur) letter dated 20.1.2017. Inspecting authority checked meter No. UPU20183 and found current and voltage of all three faces in meter, correct. 4. Thereafter again on 30.1.2017 checking was made and current and voltage on all three phases of meter was found correct. A report was submitted by EE, EUDD, Gorakhpur on 30.1.2017 to this effect but he also added that in the MRI report of meter, current without volts was shown for 24 times between 29th June, 2015 to 6th May, 2016. In this regard, MRI report was also appended to letter dated 30.1.2017. A report was submitted by EE, EUDD, Gorakhpur on 30.1.2017 to this effect but he also added that in the MRI report of meter, current without volts was shown for 24 times between 29th June, 2015 to 6th May, 2016. In this regard, MRI report was also appended to letter dated 30.1.2017. Despite the fact that no defect was found in the meter as such, EE, EUDD, Gorakhpur i.e., petitioner No. 2, on the basis of MRI report, proposed assessment under section 126 of Electricity Act, 2003 (hereinafter after referred to as "Act 20031) and sent a show-cause notice dated 4th February, 2017 informing respondent No. 3 that meter was found running slow by 33%, therefore, an assessment of ` 96,302/- is proposed where against respondent No. 3 may submit objection, if any, within 15 days. 5. The Assessment-sheet, which is placed on record at page 61, shows that assessment was made for the period of June, 2015 to June, 2016. Aforesaid amount was deposited by respondent No. 3 but then he submitted a complaint dated 22nd February, 2017 to ECGRF alleging that under threat of disconnection, respondent-3 was compelled to deposit ` 96,320/- though no defect in meter was found during checking, made twice, therefore, aforesaid amount be directed to be refunded. 6. Petitioners, it appears, despite notice issued by ECGRF, did not submit response. Hence respondent No. 2 decided the matter ex parte vide order dated 6.5.2017 and directed refund of ` 96,320/- to Consumer. Petitioners filed recall/review application which has been rejected by order dated 28.8.2018. 7. Learned Counsel for petitioners, contended that MRI data shows defect of "Current without Volts' and Current Terminal shorting on different occasions, hence petitioners were entitled to make assessment under section 126 of Act, 2003 as it amounts to "unauthorized use of electricity". MRI report being computerized record is conclusive material to prove that electricity meter has been tempered and same could not have been ignored unless 'Consumer' shows positively that said data is unreliable. He contended that Consumer was using electricity beyond sanctioned load and thus it was within ambit of the term "unauthorized use of electricity" and in such a case respondent No. 2 had no jurisdiction, since matter could have been examined only by statutory forum provided under sections 126 and 127 of Act/2003. He contended that Consumer was using electricity beyond sanctioned load and thus it was within ambit of the term "unauthorized use of electricity" and in such a case respondent No. 2 had no jurisdiction, since matter could have been examined only by statutory forum provided under sections 126 and 127 of Act/2003. Reliance is placed on Supreme Court judgment in Southern Electricity Supply Company of Orissa Ltd. (SOUTHCO) and another v. Sri Sita Ram Rice Mill. 2012 (2) SCC 108 He submitted that in the matter of assessment governed by section 126, Adjudicatory Forum provided under U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 is not applicable and, therefore, impugned orders are patently without jurisdiction. 8. We have heard Counsel for petitioners on the question of "jurisdiction of respondent-2" and also "whether assessment in case would be governed by section 126 or not". 9. It is evident from record that a checking was made by officials of PVVNL (petitioner No. 1) on 21.1.2017 on the premises of Consumer (respondent No, 3). Checking report is on page 67 of paper book. Checking team found' various seals installed on various parts of meter, intact and correct. It also found voltage and current; correct, on all three phases. It also tested meter on the load and found load distributed on all phases, correctly. No tempering was found on meter seals which may suggests any external handling by Consumer himself or through its agent, with meter or seals affixed thereon. 10. Second checking was made on 30th January, 2017. Checking report of 30th January/2017 has not been placed on record but learned Counsel for petitioners could not dispute that what was observed in checking held on 21.1.2017 Was also found on 30.1.2017 and no irregularity of any kind was noticed by checking team of PVVNL. 11. He, however, placed reliance on the report of Meter Reading Instrument i.e., MRI showing data recorded in the computer on 12th January, 2017 that between 29th June, 2015 to 6th May, 2016 there was 24 occasions when discrepancy of "current without volt" was noted in computerized uploaded data. On 7.11.2016 a similar defect without volt was recorded. Duration of aforesaid fault ranges between 6 minutes to 89 days. 12. This Court inquired from learned Counsel for petitioners to explain as to what does petitioners mean by phrase "current without voltage". On 7.11.2016 a similar defect without volt was recorded. Duration of aforesaid fault ranges between 6 minutes to 89 days. 12. This Court inquired from learned Counsel for petitioners to explain as to what does petitioners mean by phrase "current without voltage". He stated that in technical term flow of electricity and its' pace is called voltage and when it meet resistance then consequence is creation of current. But how there can be a current without voltage and how it can occur on its own and get rectified when there is no allegation of any tampering with meter seal, meter body etc., in other words when nobody has touched meter, then in what circumstances this situation may occur and disappear, on this aspect learned Counsel for petitioners was not capable of explaining things and after receiving instructions said that even the officers concerned were not able to explain anything. 13. When questioned, learned Counsel for petitioners could not dispute, that no tempering with meter seals was found. Hence it cannot be said that meter was touched or altered by Consumer at any point of time. He also could not dispute that alleged defect on "current without volts" recorded in MRI report, was not rectified or corrected by anyone but it occurred and rectified suo motu. At least MRI report did not show any reason for the alleged discrepancies. From meter seals position which were found in order, it cannot be said that Consumer himself or any of its agent has tampered with the meter in any manner so as to cause such discrepancies. 14. Further, shows cause notice dated 4th February, 2017 was not issued on the allegation that respondent Consumer was using electricity 'unauthorisedly' by doing himself something with meter, which is unauthorised, but it states that the meter was found running slow by 33%. In other words Assessing Officer suggested improper running of the meter developing some snag and thus running slow which may be for any reason of occurrence of any defect in the meter. Show cause notice nowhere suggests that assessment was proposed on the ground of "unauthorised use of electricity" by respondent No. 3 i.e., Consumer. 15. In other words Assessing Officer suggested improper running of the meter developing some snag and thus running slow which may be for any reason of occurrence of any defect in the meter. Show cause notice nowhere suggests that assessment was proposed on the ground of "unauthorised use of electricity" by respondent No. 3 i.e., Consumer. 15. The expression "unauthorized use of electricity' has been explained in section 126 of Act, 2003 and explanation (b) thereof defines "unauthorised use of electricity" which is as under: "(b) "unauthorised use of electricity" means the usage of electricity-- (i) by any artificial means; or (ii) by a means not authorised by the concerned person or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised." (Emphasis Supplied) 16. We repeatedly enquired for learned Counsel for petitioner as to under which sub-clause of expression (b) of section 126 of Act, 2003 the alleged assessment of 33% slow running of meter would fall to which learned Counsel for petitioners, could give no reply, whatsoever. He also could not dispute that petitioners have not tested meter and its accuracy in Test lab in accordance with procedure prescribed under statute to find out, whether it was defective and actually running slow. 17. Attention of learned Counsel for petitioners was drawn to Clause 5.6 of U.P. Electricity Code, 2005 (hereinafter referred to as "Code, 2005") which deals with subject of defective meter and contains procedure when a meter is suspected to be defective. He could not dispute that a defective meter has to be dealt under Clause 5.6 of Code, 2005. Aforesaid Clause has been considered by Division Bench of this Court in Smt. Amrawati Devi v. Purvanchal Vidyut Vitran Nigam Limited and another, 2009 (74) ALR 701 and it has been laid down therein that before declaring a meter defective, it has to be tested in a Test Lab by giving information to consumer and in his presence, if he chose to remain present after receiving information and if no such procedure is followed, no assessment by treating the meter to be defective can be made. Paras 6, 10 and 11 of the judgment read as under: "6. Paras 6, 10 and 11 of the judgment read as under: "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." "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 agency 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. 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. 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." 18. When the matter in respect of defective meter is covered by Clause 5.6, assessment of theft of energy on the ground of Unauthorised use of electricity cannot be made as it is a different contingency. The question of tempering of meter resulting in unauthorised use of electricity etc. is not something which can be said to be covered by the terms defective meter. 19. Whenever a claim is made by electricity supplier that meter installed in the premises of consumer is defective and, therefore, lesser consumption is recorded and consumer is liable to pay something more, then two questions have to be explained. Firstly, whether meter is defective, and when this question is answered in affirmative the second question would be what is the shortage of energy which has been billed to consumer and he is liable to be pay further. 20. As has been said, the manner in which a meter shall be ascertained to be defective is provided in Clause 5.6 of Code, 2005 and that has not been done. There is no ascertainment, whether meter is defective or not, hence question of ascertainment of further billing would not arise. 20. As has been said, the manner in which a meter shall be ascertained to be defective is provided in Clause 5.6 of Code, 2005 and that has not been done. There is no ascertainment, whether meter is defective or not, hence question of ascertainment of further billing would not arise. Tempering of energy, theft of electrical energy or unauthorised use of electrical energy are something different than what is claimed to be "defective meter" and on account whereof short billing to consumer. 21. Learned Counsel for petitioners placed reliance on a Supreme Court's decision in Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. and another v. Sri Seetaram Rice Mill, 2012 (2) SCC 108 but we do not find that it was a case where electricity supplier claimed that there was a defect in the meter and still assessment was made under section 126(1). Therein the admitted facts were that consumer, a partnership firm, had established a small scale industrial unit for production of rice and for this purpose had electrical connection with contracted load classified as "medium industry category". An assessment was made for unauthorised use of electricity on 25.7.2009 under section 126(1) of Act, 2003. Consumer was given opportunity to file objection, if any. No objection was filed and instead consumer filed a writ petition stating that provisional assessment made by electricity authorities on the ground of unauthorised use of electricity, is illegal. Department contended that there was a report dated 10.6.2009 showing over drawl of maximum demand by consumer and it amounts to unauthorised use of electricity. High Court decided matter by holding that "unauthorised use of electricity" is a term exhaustively explained by Explanation to section 126 and overdrawal of maximum demand would not fall under the scope of unauthorised use of electricity. When matter went to Supreme Court, it formulated the following three questions: "1. Wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the provisions of section 126 of the 2003 Act be attracted on its true scope and interpretation? 2. Whether the High Court, in the facts and circumstances of the case, was justified in interfering with the provisional order of assessment/show-cause notice dated 25th July, 2009, in exercise of its jurisdiction under Article 226 of the Constitution of India? 3. 2. Whether the High Court, in the facts and circumstances of the case, was justified in interfering with the provisional order of assessment/show-cause notice dated 25th July, 2009, in exercise of its jurisdiction under Article 226 of the Constitution of India? 3. Was the Writ petition before the High Court under Article 226 of the Constitution of India not maintainable because of a statutory alternative remedy being available under section 127 of the 2003 Act?" 22. Question of defective meter, as such, was neither examined by High Court nor Supreme Court and, therefore, aforesaid judgment, in our view, does not help petitioners. 23. Moreover, in the present case, an expert body, i.e., Consumer Grievance Redressal Forum, Gorakhpur, has already examined the matter vide order dated 28.8.2018. Learned Counsel for petitioners could not dispute that in the checking, current and voltage on all the three phases in the meter was found correct, twice, but in MRI report there was display of certain period of "current without volt" for which no reason could be explained as to how it happened. When there was no tempering in the meter and current and voltage in all the three phases was found twice correct no case of an unauthorized use of electricity is made out. 24. Even in the show-cause notice dated 4.2.2017 (Annexure-4 to writ petition), assessment was not proposed on "unauthorised use of electricity" but on the ground that "meter was found running slow by 33%". That being so, unless the fact that meter was defective and' running slow by 33% is ascertained in accordance with procedure prescribed in Clause 5:6 of Code, 2005, no further assessment could have been made. Admittedly, procedure laid down in Clause 5.6 was not observed. There is no ascertainment or adjudication by authorities concerned that meter was actually running slow. Hence, authorities had no power to make any assessment. Moreso assessment could not have been made for unauthorised use of electricity since it was a case of alleged slow running of meter. 25. We, therefore, find no merit in writ petition. Dismissed accordingly.