JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs-
2. (a) The Op be directed for cancellation of the assessment amount Rs.304670/ as being illegal invalid and void and not recoverable and the recovery notice be also cancelled.
3. The Complainant has stated that she is the consumer of the op with electricity connection LMV-6 of  5KW. The defective meter was replaced by a new meter by the officials of the Op. Complainant came to know through notice dated 23.4.2021 that meter was tested in lab and found defective as per report dated 6.4.2021. The assessment of revenue was proposed at Rs.304671/ in violation of   clause 8.1/8.2 of the UP Electricity Supply Code,2005. Complainant was asked to deposit the amount of said assessment within 15 days. In the notice dated 23.4.2021 complainant was asked to file objection by 11.5.2021 against proposed/provisional assessment but the said notice was served on the complainant by the registered post on 22.6.2021 and the objection against the provisional assessment could not be filed on 11.5.2021. The provisional assessment was made final without giving an opportunity of being heard to the complainant. As the meter was found defective and therefore the complainant should have been informed of the proposed date of the testing  the meter in the lab at least seven days in advance to exercise her right granted in clause 5.6(d) of the code,2005. No inspection report was prepared at the time of removal of the meter from the premises as in the case of theft by tempering with the meter, meter shall be removed, sealed and tested in accordance with provisions of clause 5.6 as required in clause 8.1(a) (vii) of the code,2005. Notice dated 23.4.2021 shows that the assessment made was U/s 135 and therefore special court has to determine the civil liability U/s 154(5) of the Electricity Act,2003. The assessment raised by the assessing officer is subject to determination of the civil liability by the special court and assessment raised by the OP in notice dated 23.4.2021is illegal invalid and is not recoverable.
4.  Op submitted in WS that the complainant is the consumer of OP with the LMV-6 connection of 5KW and the meter was replaced because the meter was not displaying the readings. Complainant was asked by notice dated 23.4.2021 to file the objection against the provisional revenue assessment Rs.304671/. Complainant has tempered with the meter and theft of electricity was being committed, the  self-lock of the meter box was broken and meter was not displaying the readings. The push button was not being pushed. Complainant’s connection has been permanently disconnected and the amount of Rs. 467814/ is due.     
5. Complainant has filed his affidavit and papers in support of his pleadings.  Op has also filed his affidavit and papers  in support of his pleadings
6. We have perused the material available on record and heard the complaint and op’s counsel.
7. The first question of consideration before us is whether the complainant is entitled to any relief?
8. Complainant has challenged the assessment Rs.3046471/demanded by the OP by its letter dated 23.4.2021 as final assessment against the alleged theft of electricity committed by the complainant by way of tempering with the meter which was replaced by a new meter. In the letter dated 23.4.2021 the complainant was asked file objection against the proposed/provisional assessment Rs.304671/ on 11.5.2021 but the complainant has deposed that the letter was received by her on 22.6.2021 and she has filed the postal envelope on which the postal receipt dated was 22.6.2021 is pasted. It makes clear that the complainant was deprived from the opportunity of being heard against the proposed /provisional assessment whereas section 126/127 of the Electricity Act and clause 8.1(b) (iii) of the code, 2005 make it mandatory to provide an opportunity of being heard against the provisional assessment to make it final assessment. Thus the alleged final assessment is vitiated in law. Further, procedure laid down for removal of the meter in case of suspected electricity theft, it was necessary to prepare the report at the site giving details of connected load condition and details of seal and working of the meter and report shall be signed by the each member of the inspection team and shall be handed over to the consumer or his representative at site under proper receipt. In case of refusal by consumer or his representative to accept or to give receipt, copy of the report shall be pasted at conspicuous place of the premises and may be photographed. The report shall also be sent to consumer under registered post on the day or next day of the inspection. There appears nothing to show in regard to fallow up the procedure  as laid down by the law. Hence the allegations of alleged theft are again vitiated in law. It is also important to note that the provisions of clause 5.6(d) of the Code were not followed in testing the meter. The test result sheet of test of the meter does not bear the signature of consumer or his representative. There is nothing to show to provide an opportunity to the consumer to exercise her right of testing the meter by independent test lab as per clause 5.6(d) of the Code,2005. This raises suspicioun  on the veracity of the test report. Under the circumstances the alleged assessment is held to be against the law. It is provided in clause 8.1(a) (vi) of the Code,2005 that it should be inferred from the report that a prima facie case is made out and it also provided in clause 8.1(a) (xi) of Code,2005 that the F IR of electricity theft shall be lodged having found the prima facie evidence of theft. It is clear that there is no prima facie legal evidence of electricity theft against the complainant and the assessment raised on the basis of such report of electricity theft is not legal and valid. The assessment raised by the op is subject to determination of the liability U/s 154(5) of the electricity Act,2003  and  therefore the alleged assessment is not liable to be recovered till the final liability is determined by the special court. The op may be directed not to recover the alleged assessment amount till the final determination made by the Special Court constituted under section 153 of the Electricity Act,2003.              
9.   The question formulated above is decided in favour of the complainant.
10.   We hereby direct the op to not to realize the assessment amount Rs.304671/ till the final determination of the liability by Special court.
11. Op shall comply with the direction failing which OP shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
12. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
13. File be consigned to record room along with a copy of this judgment.