JUDGMENT : 1. The order of the appellate authority under Section 127(3) of the Electricity Act, 2003 (hereinafter referred to as 'the said Act' in short) passed in Appeal Petition No. AP-3/08040116005 of 2008 is under challenge in the present writ petition at the instance of the licensee CESC limited. 2. The respondent no. 3 was a consumer under the petitioner/licensee having Consumer No. 08040116 at the premises no. 2/1 Moore Avenue, Kol. 700040. The said consumer was utilising electricity through 'M' rate commercial Meter No. 236872 and was also utilising electricity through 'K' rate industrial meter for manufacturing purpose of her industrial unit under the name and style of M/S. MICA BOX CO. The said industrial meter was disconnected on July 25, 2001 due to pilferage of electricity indulged by the respondent no. 3. She failed to pay sum of Rs. 1,11,75.85/- an amount assessed on account of unmetered consumption of electricity. 3. The loss control cell of the licensee during an inspection of service installation and metering system on February 29, 2008 at the aforesaid premises detected that the respondent no. 3 was utilising electricity through the said commercial meter to cater certain loads of the industrial meter. The supply to the industrial meter since was earlier disconnected for unauthorised use of electricity catering to the industrial requirement from the said commercial meter for manufacturing purpose was considered to be an unauthorised use of electricity and the said commercial (M) meter was disconnected by the said loss control cell on February 29, 2008 for indulging such malpractice. 4. A provisional bill amounting to Rs. 1,19,298/- (One lakh Nineteen Thousand Two hundred Ninety Eight) was served upon the respondent no. 3 in terms of Section 126(2) of the said Act. Subsequent thereto the assessing officer of the licensee proceeded to finalise with the said provisional assessment, after affording opportunity of hearing to the respondent no. 3 in accordance with Section 126(3) of the said Act. 5. The respondent no. 3 filed written representation dated March 03, 2008 and March 08, 2008 which were considered by the assessing officer in extenso. The authorised assessing officer of the licensee inspected the office of the consumer and during his visit he found the factory of the respondent no. 3 was in operation with a 220 volt single phase, 750VA generator set. 3 filed written representation dated March 03, 2008 and March 08, 2008 which were considered by the assessing officer in extenso. The authorised assessing officer of the licensee inspected the office of the consumer and during his visit he found the factory of the respondent no. 3 was in operation with a 220 volt single phase, 750VA generator set. The details of load of establishment have been recorded by the said assessing officer in his final order of assessment which reads as under: 1. The load inside the factory: a. 1no- Lathe machine with 2 KW motor. b. 1no- Drill machine with 0.5 KW motor. c. 1no- Grinding machine with 0.5 KW motor. d. 1no- Baby Milling Machine with 0.5 KW motor. e. 1no- Heat Chamber with total load of 2 KW. F. 5NOS. Tube lights and 1 no. Ceiling Fan & 1no. Wall mounted fan. 2. The office load were as under: a. 1 no- 0.75 TR window AC machine. b. 1nos- nos. Tube Lights. c. 1no-no. Ceiling fan. d. 1no- Computer. 6. The assessing officer after considering the materials on record passed the final order of assessment dated March 17, 2008 holding that there was unauthorised use of electricity by the consumer for the period between the date of disconnection of the 'K' rate industrial meter bearing No. 2147835 i.e. July 25, 2001 and the date of disconnection of the 'M' rate commercial meter bearing No. 2367872 on February 29, 2008 and assessed the electricity charges for the said period at Rs. 1,19,198.00/-. The observations of the assessing officer in the said final order of assessment in fixing the period of unauthorised use of electricity being relevant are reproduced below: "The total connected load of the works and office is around 7 kw. The record of the consumption pattern of the consumers indicates a maximum consumption of 612 units, which represent a load of around 3KW. This clearly indicates that the consumer was drawing partial load from the "M" rate meter to cater the industrial load throughout the period since the "K" rate industrial meter was disconnected till 29.02.2008." 7. The respondent no. 3 challenged the said final order of assessment in W.P. No. 5367 (W) of 2008. The said writ petition was disposed of by granting liberty to the respondent no. The respondent no. 3 challenged the said final order of assessment in W.P. No. 5367 (W) of 2008. The said writ petition was disposed of by granting liberty to the respondent no. 3, the petitioner of the said writ petition to prefer an appeal against the said final order of assessment upon deposit of the fifty per cent of the amount assessed in the said final order of assessment. 8. The respondent no. 3 thereafter preferred an appeal before the appellate authority under Section 127of the said Act disputing the period of unauthorised use of electricity as determined by the assessing officer in the final order of assessment. 9. The appellate authority limited the period of unauthorised use of electricity since April 2007 on the presumption that the proprietress of M/S. MICA BOX CO. the respondent no. 3 herein has bought some machine for running the two division of her industry on April 2007, therefore, the said unauthorised use of electricity was made from the said point of time. 10. The provision of Section 126(5) of the said Act provides that the assessing officer as soon as reaches to the conclusion, that unauthorised use of electricity has taken place, he shall make the assessment for the entire period during which such unauthorised use of electricity has taken place. An eventuality has been contemplated under the said provision of the said Act to reckon the period of unauthorised use of electricity i.e. where such period cannot be ascertained the period of unauthorised use of electricity shall be limited to a period of twelve months immediately preceding the date of inspection. 11. The assessing officer in the final order of assessment has supplied detailed reason in fixing the period of unauthorised use of electricity from July 25, 2001. The unauthorised use of 'M' rate commercial meter to cater loads of the 'K' rate industrial meter is not in dispute. The 'K' rate industrial meter was disconnected on July 25, 2001. The industrial unit of respondent no. 3 even thereafter continued to function by using the 'M' rate commercial meter, which leads to the inhabitable conclusion that the said unauthorised use of electricity commenced from the date of disconnection of 'K' rate industrial meter i.e. July 25, 2001 and such unauthorised use of electricity continued till the disconnection of 'M' rate commercial meter on February, 2008. 3 even thereafter continued to function by using the 'M' rate commercial meter, which leads to the inhabitable conclusion that the said unauthorised use of electricity commenced from the date of disconnection of 'K' rate industrial meter i.e. July 25, 2001 and such unauthorised use of electricity continued till the disconnection of 'M' rate commercial meter on February, 2008. The said conclusion is fructified by the detailed reasons supplied by the assessing officer in his final order of assessment. The said conclusion cannot be disturbed on a presumption that since the respondent no. 3 had bought some machine for her industrial unit in the month of April 2007 the unauthorised use of electricity commenced from April, 2007. 12. The presumption on which the appellate authority acted in fixing the period of unauthorised use of electricity since April 2007 is perverse since it is based on no evidence which vitiates the order impugned in it's entirety. That apart the appellate authority has committed error in embarking upon the eventuality contemplated under the provisions 126(5) of the said Act in fixing the period of unauthorised use of electricity since April 2007 since there are sufficient materials to ascertain the said period. 13. The order impugned dated November 10, 2008 passed by the appellate authority under Section 127of the said Act in Appeal Petition No. AP- 3/08040116005 of 2008 is not sustainable for the reasons discussed above and is set aside accordingly and the final order of assessment dated March 17, 2008 of the assessing officer of licensee is restored. W.P. No. 930 (W) of 2019 is thus allowed. However, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.