"Page No.# 1/15 GAHC010252122025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/28/2026 TRIBENI METALLOYS PVT. LTD. A COMPANY DULY INCORPORATED UNDER THE COMPANLES ACT, 1956 HAVING ITS OFFICE AT 4TH FLOOR, S.S. COMPLEX, S, J, ROAD, ATHGAON, GUWAHATI - I AND HAVING ITS INDUSTRY/FACTORY AT SILA INDUSTRIAL COMPLEX - II, CHANGSARI, GUWAHATI - 781101, KAMRUP R, ASSAM, RERPRESENTED BY ONE OF ITS AUTHORIZED DIRECTOR SRI PRADYUMNA JALAN, S/O SRI DINDAYAL JALAN. VERSUS ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 3 ORS A GOVERNMENT OF ASSAM UNDERTAKING DULY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT BIJULEE BHAWAN, PALTAN BAZAR, GUWAHATI - 781001, DULY REPRESENTED BY ITS CHAIRMAN-CUMMANAGING DIRECTOR 2:THE CHIEF EXECUTIVE OFFICER GUWAHATI ELECTRICAL CIRCLE II APDCL AMINGAON ASSAM. 2:THE CHIEF EXECUTIVE OFFICER GUWAHATI ELECTRICAL CIRCLE - II APDCL AMINGAON ASSAM 3:THE ASSTT .GENERAL MANAGER T AND C DIVISION Printed from counselvise.com Page No.# 2/15 GEC II APDCL AMINGAON ASSAM. 3:THE ASSTT GENERAT MANAGER T AND C DIVISION GEC - II APDCL AMINGAON ASSAM. 4:THE AREA MANAGER AND IRCA II APDCL I.AR GU BYPASS GARIGAON JALUKBARI GUWAHATI - 781014 4:THE AREA MANAGER IRCA-II APDCL (LAR) GU BYPASS GARIGAON JALUKBARI GUWAHATI 78101 Advocate for the Petitioner : MS DIMPI DUTTA, MR. A BORPUZARI,MR. M MORE Advocate for the Respondent : SC, APDCL, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Date : 07-03-2026 Date on which judgment is reserved : 26.02.2026 Date of pronouncement of judgment :07.03.2026 Whether the pronouncement is of Printed from counselvise.com Page No.# 3/15 the operative part of the judgment? : NO Whether the full judgment has been Pronounced : YES JUDGMENT AND ORDER (CAV) (K.R. Surana, J) Heard Mr. P.K. Sarma, learned counsel for the appellant. Also heard Mr. K.P. Pathak, learned standing counsel for the respondents. 2) This intra-court appeal is to assail the judgment and order dated 13.10.2025, passed by the learned Single Judge in W.P.(C) 2608/2019, thereby dismissing the said writ petition filed by the appellant. Appellants case in brief: 3) The appellant herein is that the appellant company has an industrial unit, having connected load of 2310 KW., drawing electricity power from the Assam Power Distribution Co. Ltd., (APDCL for short), the respondent no.1 herein. It has been projected that the APDCL had carried out usual inspection of the metering system of the appellants on 08.04.2019, but no anomalies were found. However, another inspection was carried out on 11.04.2019 at about 3.30 pm, and allegedly detected tampering of the metering system and a report to that effect was prepared on 11.04.2019. The representative of the appellants had made a remark on the inspection note to the effect that a false case was made out against them, and all seals were intact, but those seals were cut, broken and tampered by the inspecting team to frame a false case, for which there was nothing in the T&C Report or Format-16 Printed from counselvise.com Page No.# 4/15 showing any specified quantum of electricity stolen by the appellants, as required under Section 135 of the Electricity Act and that the electricity supply was illegally disconnected and that nothing was shown to as to what was tampering in the meter. 4) The appellant, by filing a writ petition, which was registered and numbered as W.P.(C) 2609/2019, amongst others, prayed for setting aside and quashing of the (i) inspection report dated 11.04.2019; (ii) seizure report dated 11.04.2019; (iii) assessment bill dated 12.04.2019, (iv) FIR dated 12.04.2019; and (iv) bill dated 20.04.2019. This Court, by an interim order dated 12.04.2019, as an interim measure, directed the respondents to restore electricity supply to the industrial unit of the appellant and also granted liberty to the respondents to continue with the proceeding following inspection and consequential seizure dated 11.04.2019. 5) The respondents filed an interlocutory application for vacating the interim order dated 11.04.2019. However, the learned Single Judge, by an order dated 07.05.2019, dismissed the said I.A.(C) No. 1445/2019 [in W.P.(C) No. 2608/2019], by holding that no case was made out for vacating the stay. The learned Single Judge, upon hearing both sides and after considering the materials available on record as well as the cases cited at the Bar, dismissed the writ petition by holding that the appellant is having an efficacious alternative remedy under Section 127 of the Electricity Act, 2003, so far the same relates to the impugned assessment more particularly, when the Assam Electricity Regulatory Commission has already notified in the Code and in terms of the Electricity (Removal of Difficulties) Order, 2005, adopting the procedure prescribed under Section 126 of the Electricity Act, 2003, so far, the same relates to assessment of charges pending determination by the Special Court Printed from counselvise.com Page No.# 5/15 exercising its power under Section 154 of the Electricity Act, 2003. However, it was provided that the determination made herein shall not influence the authorities on the merit of the inspection report and the assessment made thereof. Submissions by the learned counsel for the appellants in support of the grounds of challenge in this appeal: 6) The learned counsel for the appellant had pressed all the 32 (thirty two) grounds on which this appeal is preferred. 7) The gist of the submissions made by the learned counsel for the appellant can be summarized as follows:- a. It was submitted that the note made by the Factory Manager clearly reflected that there was no anomaly in the metering system, but with some mala fide intention, the inspection team had broken the seals and thus, tampered with the metering system. b. Elaborate technical submission was made to explain that the present metering system was capable of detecting and recording meter tampering. c. It was submitted that the inspection report and consequent seizure report were illegal and do not make out a case of theft of electricity energy by the appellants. d. It was also submitting that the last inspection of the metering system was carried out by the respondents on 08.04.2019, and the alleged and disputed meter tampering was detected on 11.04.2019. Therefore, at best, the suspected theft of electricity power was only for 3 (three) days. It has been submitted that the respondents had not produced Printed from counselvise.com Page No.# 6/15 the reading of the check meter installed in respect of electricity energy supplied to the factory of the appellant. e. It was submitted that the provision of Section 126 of the Electricity Act, 2003 and the provision of Section 135 of the said Act operated in different fields and therefore, while provision for appeal has been provided for in respect of assessment made under Section 126 of the Electricity Act, 2003, no appeal was provided for in respect of offence of theft, which is covered by the provision of Section 135 of the Electricity Act, 2003. Hence, it was submitted that the learned Single Judge had ex facie committed a mistake in holding that the appellant had an alternative efficacious remedy available and to dismiss the writ petition on the said count. f. It was submitted that the Inspection Team of the respondents did not seize the broken seals. It was submitted that a consumer can be booked for theft only if with cogent material, they can establish that the appellant had abstracted, used, consumed or wasted of stole some specified quantum of electricity by adopting any of the means and mode, as specified under Section 135(1)(a) to Section 135(1)(e) of the Electricity Act, 2003, which was not quantified in this case. It was also submitted that Inspection report was not in adherence to the Clause 7.5.2 (f) of the Assam Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2017 (hereinafter referred to as the “Supply Code” for brevity). It has been submitted that Common Meter Reading Instrument (CMRI for short) reading was not downloaded and supplied to the petitioner. It has been submitted that assuming but not admitting that the appellant had committed meter tampering, but Printed from counselvise.com Page No.# 7/15 unless, it is shown that the appellant had abstracted electricity energy, the appellant cannot be accused of theft of electricity. g. It was submitted that the learned Single Judge had dismissed the writ petition, basically, relying on the decision of the Supreme Court of India, in the case of West Bengal State Electricity Distribution Company Limited & Ors. v. Orion Metal Private Limited & Anr., (2020) 18 SCC 588. Moreover, reliance was also placed on the decision of this Court in the case of Shiv Alloys Steel v. Assam Power Distribution Company Ltd. & Ors., (2021) 4 GLT 558, as upheld by the Division Bench of this Court in M/s. Shiv Alloys Steel v. Assam Power Distribution Company Ltd. & Ors., W.A. No. 286/2021, decided on 16.11.2021. In the said regard, it was submitted that the decision of the Supreme Court of India in the case of Orion Metal Private Limited & Anr. (supra) was hit either by the doctrine of per incurium or by the doctrine of sub silentio, being in ignorance of the law laid down by the Full Bench of the Supreme Court of India in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108. Hence, it has been submitted that the impugned judgment and order warrants interference in this intra-court appeal. h. In support of his submissions, the learned counsel for the appellant had cited the following cases, viz., (i) Shiv Alloys Steel (supra), as upheld by the Division Bench of this Court in (ii) M/s. Shiv Alloys Steel (supra), (iii) Sri Seetaram Rice Mill (supra), (iv) Kerala State Electricity Board & Anr. v. Thomas Joseph alias Joseph M.J. & Ors., (2023) 11 SCC 700 (para 54 to 60), (v) N. Bhargavan Pillai (Dead) by LRs & Anr. Printed from counselvise.com Page No.# 8/15 v. State of Kerala, (2004) 13 SCC 217 (para 14), (vi) A-One Granites v. State of U.P. & Ors., (2001) 3 SCC 537 (para 10 to 14), (vii) Arnit Das v. State of Bihar, (2000) 5 SCC 488 (para 20), (viii) State of U.P. & Anr. v. Synthetics and Chemicals Ltd. & Anr., (1991) 4 SCC 139 (para 39 to 42), (ix) Ganesh Chandra Pathak v. The State of Assam & Ors., W.P.(C) 4224/2018, decided by this Court on 20.04.2021. Submissions by the learned standing counsel for the respondents in support of the impugned judgment and order: 8) Per contra, the learned standing counsel for the respondents has made his submission in support of the judgment and order assailed in this intra-court appeal. 9) It has been submitted that the ratio of the case must be read on the basis of facts involved in the case. Accordingly, it has been submitted that on facts, the case of Orion Metal Private Limited & Anr. (supra), was applicable. Accordingly, it has been submitted that while the Supreme Court of India may itself hold any of its judgment and orders to be judgment sub silentio or be per incurium, but it is not open to this Court to hold any judgment passed by the Supreme Court of India as judgment sub silentio or per incurium. In support of the said submission, the following cases have been cited, viz., (i) Dr. Shah Faesal & Ors. v. Union of India & Anr., (2020) 4 SCC 1 (para 27 to 32), (ii) South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai & Ors., (2015) 2 SCC 727 (para 12 to 16), (iii) Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420 (para 9). Moreover, the learned standing counsel for the respondents has filed a written note of submissions, which is retained on record. Printed from counselvise.com Page No.# 9/15 Reasons and decision: 10) The only point of determination in this intra-court appeal is whether the impugned judgment and order dated 13.10.2025, passed by the learned Single Judge in W.P.(C) 2608/2019, thereby dismissing the said writ petition filed by the appellant is liable to be interfered with. 11) Before examining the facts involved in this case, it would be important to examine the scope for interference with the judgment and order passed by the learned Single Judge. In quest of the same, the Court is inclined to refer to the decision of the Supreme Court of India in the case of N. Ramachandra Reddy v. State of Telengana, (2020) 16 SCC 478: AIR 2019 SC 4182, where it has been held that while considering intra court appeal, unless the appellate Bench concludes that the findings of Single Judge is perverse, it shall not disturb the same. 12) It may also be stated that the Division Bench of this Court, in the case of State of Tripura v. Ramendra Nath Dey, (2000) 3 GLT 214: (2001) 1 GLR 54: (2000) 0 Supreme(Gau) 280, has held to the effect that the judgment of the learned Single Judge should be set aside or quashed only when there is patent error on the face of the record or the judgment is against the established or well settled principle of law. Moreover, in the case of Starline Agency v. Nabajit Das, 2011 (1) GLT 710: (2011) 5 GLR 186: (2011) 0 Supreme(Gau) 149, the Division Bench of this Court has held to the effect that if two reasonable and logical views are possible, the view adopted by the Single Judge should normally be allowed to prevail. In the case of Assam State Electricity Board V. Sri Surya Kanta Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190, this Court has held to the effect that the appellate court will not interfere with the discretion of the court of first instance and substitute its own discretion except where the Printed from counselvise.com Page No.# 10/15 discretion has been shown to have been exercised arbitrarily or capriciously or perversity or where the court has ignored the settled principles of law. 13) Therefore, it must be first examined as to whether the impugned judgment and order suffers from any perversity or where the learned Single Judge has ignored the principles of law. 14) To assail the impugned judgment and order, apart from facts of the case, it was submitted by the learned counsel for the appellant that the judgment of the case of Orion Metal Private Limited & Anr. (supra), based on which the case was decided, was hit by the principles of judgment sub-silentio and/or hit by the principles of per incurium. For the reasons given in the foregoing paragraphs, the Court is unable to accept the said submission of the learned counsel for the appellant. 15) The facts of the case of Orion Metal Private Limited & Anr. (supra), was that during inspection, the inspecting team, amongst others, took a view that there was a theft of energy by tampering of the meter by the respondent Company. After inspection a criminal case was lodged before the local police station, complaining of theft of energy and a case was registered and upon investigation, a charge-sheet was submitted against the respondent Company. Aggrieved by the provisional assessment and consequential demand, the respondents had filed a writ petition, inter alia, questioning the jurisdiction of the assessing officer in issuing the provisional assessment under Section 126(1) of the Electricity Act, 2003 and the consequential demand. It was also alleged that the provisional assessment was not made in accordance with the provision of Section 126(1) of the said Act. The learned Single Judge had quashed the provisional assessment and the consequential demand, however, directing the State Government to appoint any member of the inspection team Printed from counselvise.com Page No.# 11/15 as an assessing officer. Under the aforesaid facts, the Supreme Court of India, by relying on the earlier decision in the case of Sri Seetaram Rice Mills (supra), in paragraph nos. 13 to 15 of the said judgment, had held as follows:- “13. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the -substantive provisions of the Act itself. The Standing Committee on Energy, 2001, in its discussion said, `the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements'. The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the legislative intent. 14. By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that the provisions of Section 126 of the 2003 Act should be read with other provisions, the regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation. 1(b) Distinction between Sections 126 and 135 of the 2003 Act 15. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and title of the Section is `theft of electricity'. The Section opens with the words `whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Subsection (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 -Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed Printed from counselvise.com Page No.# 12/15 in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression `unauthorized use of electricity'. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an `authorized use of electricity'. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of -Section 126(2) of the 2003 Act. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of Sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.” 16) Thus, from the above, it is apparent that the facts of the case of Sri Seetaram Rice Mills (supra), is similar to the facts of the present case in hand and therefore, it cannot be held that the ratio of the said judgment will not apply to the facts of this case. 17) Though the learned counsel for the appellants has invoked the doctrine of judgment sub silentio and/or per incurium, but in none of the decisions cited by the learned counsel for the petitioner, it has been held that a High Court is permitted to declare a judgment passed by Supreme Court of India to be judgment sub silentio and/or per incurium. Therefore, after the Supreme Court of India had considered the issue of theft of electricity and on examining the provisions of Section 126 and Section 135(1)(a) and Section 135(A-A) of the Electricity Act, 2003, had given its verdict in the case of Orion Metal Private Limited & Anr. (supra), the Court is of the considered opinion that Printed from counselvise.com Page No.# 13/15 it would be a law binding on this Court under Article 141 of the Constitution of India and it would not be open to this Court, under the facts and circumstances of the case that the said verdict is hit by the principles/doctrine of judgment sub silentio and/or per incurium. 18) In the case of Suganthi Suresh Kumar (supra), the Supreme Court of India had held in clear terms in paragraph 9 thereof that it is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court had laid down the legal position without considering any other point. 19) Accordingly, as the learned Single Judge, having considered the decision of this Court in the case of (i) Shiv Alloys Steel (supra), (ii) M/s. Shiv Alloys Steel (supra) (Division Bench), (iii) Sri Seetaram Rice Mill (supra), and (iv) Orion Metal Private Limited & Anr. (supra), had arrived at a decision in paragraph 24 of the impugned judgment and order that the assessment under Section 126 of the Electricity Act, 2003 and prosecution under Section 135 are not mutually exclusive but complementary and that Section 126 imposes civil liability while Section 135 addresses parallel consequences and that both proceedings can run concurrently, is found to be on sound legal footing. The observations made by the learned Single Judge in paragraph 28 of the impugned judgment that the determination made in the case of Orion Metal Private Limited & Anr. (supra), is conclusive in nature is also found to be on sound legal footing. The learned Single Judge has applied correct principles of law in placing reliance on the decision of the coordinate Bench in the case of Shiv Alloys Steel (supra), which was upheld by the Division Bench of this Court in M/s. Shiv Alloys Steel (supra), wherein it was held that the writ petition is not maintainable as there is a specific alternative remedy by way of appeal under Printed from counselvise.com Page No.# 14/15 Section 127 of the Electricity Act, 2003. Accordingly, by the impugned judgment and order, the learned Single Judge had held that the appellant is having an efficacious alternative remedy under Section 127 of the Electricity Act, 2003, so far the same relates to the impugned assessment more particularly, when the Assam Electricity Regulatory Commission has already notified in the Code and in terms of the Electricity (Removal of Difficulties) Order, 2005, adopting the procedure prescribed under Section 126 of the Electricity Act, 2003, so far, the same relates to assessment of charges pending determination by the Special Court exercising its power under Section 154 of the Electricity Act, 2003. 20) It would be pertinent to mention that in the considered opinion of the Court, as held in Orion Metal Private Limited & Anr. (supra), in the case the assessing authority takes a view that there was theft of electricity energy, the assessing authority can make an assessment as contemplated under Section 126(1) of the Electricity Act, 2003. 21) Therefore, in light of the discussions above, this Appellate Bench approves of and affirms the finding and decision by the learned Single Judge, as it is a plausible view based on the decision of the Supreme Court of India in the case of (i) Metal Private Limited & Anr. (supra), (ii) M/s. Shiv Alloys Steel (supra) (Division Bench), (iii) Sri Seetaram Rice Mills (supra), and (iv) Orion Metal Private Limited & Anr. (supra). Therefore, none of the cases cited by the learned counsel for the appellants come to the aid of the appellants in any manner. 22) Accordingly, this intra-court/writ appeal against the judgment and order dated 13.10.2025, passed by the learned Single Judge in W.P.(C) 2608/2019, fails and this appeal is dismissed. The parties are left to bear their own cost. Printed from counselvise.com Page No.# 15/15 JUDGE. JUDGE. Comparing Assistant Printed from counselvise.com Parimit a Kalita Digitally signed by Parimita Kalita Date: 2026.03.09 04:52:05 -07'00' "