Madras High Court
The Executive Engineer (Distribution) vs S.J.Gayas on 5 February, 2008
Equivalent citations: AIR 2008 MADRAS 148, 2008 (4) ALL LJ NOC 926, 2008 (2) AJHAR (NOC) 676 (MAD), 2008 (2) AKAR (NOC) 210 (MAD), 2008 A I H C (NOC) 524 (MAD), (2008) 2 MADLW(CRI) 746, (2008) 1 MAD LJ(CRI) 292, (2008) 2 MAD LJ 812, (2008) WRITLR 816
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, S.R.Singharavelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 5.2.2008
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU
Writ Appeal (MD) No.378 of 2005,
Writ Appeal (MD) No.379 of 2005
Writ Appeal No.895 of 2005,
Writ Appeal No.1736 of 2005
and
Writ Appeal (MD)No.107 of 2007,
AND
WAMP.Nos.531,532,1663,3223 of 2005 and WAMP.No.1 of 2007
W.A.(MD) No.378 of 2005:
The Executive Engineer (Distribution)
Tamil Nadu Electricity Board,
Thiruchendur. ... Appellant
Vs.
1.S.J.Gayas
2.The Secretary,
Energy Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600009. ... Respondents
W.A.(MD) No.379 of 2005:
The Executive Engineer (Distribution)
Tamil Nadu Electricity Board,
Thiruchendur. ... Appellant
Vs.
1.G.Jayaprakash
2.The Secretary,
Energy Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600009. ... Respondents
W.A.No.895 of 2005:
1.The Executive Engineer,
Tamil Nadu Electricity Board,
Tondiarpet, CEDC/North,
Chennai.
2.The Superintending Engineer,
Tamil Nadu Electricity Board,
CEDC/North,
Chennai-600002. ... Appellants
Vs.
Thiru Nachiappan ... Respondent
W.A.No.1736 of 2005:
1.The Superintending Engineer,
Tamil Nadu Electricity Board,
Olimmohammedpet,
Kancheepuram.
2.The Executive Engineer,
Tamil Nadu Electricity Board,
Railway Road,
Kancheepuram.
3.The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
Railway Road,
Kancheepuram ... Appellants
Vs.
P.Rajaram ... Respondent
W.A.(MD) No.107 of 2007
The Superintending Engineer,
Dindugul Electricity Distribution Circle,
Dindugul. ... Appellant
Vs.
1.M/s.Dindugul Steel Rolling Mills (P) Ltd.,
SF.No.414/1, Karur Road,
Kulathur,
Dindugul-5,
rep.by T.Ravi Shankar, Manager
2.The Secretary,
Energy Department,
Government of Tamil Nadu,
Chennai-9. ... Respondents
* * *
All the Writ Appeals are filed under Clause 15 of the Letters Patent.
Writ Appeal (MD) No.378 of 2005 has been filed against the order of the learned single Judge of the Madurai Bench of this Court, dated 18.5.2005 made in W.P.No.4406 of 2005.
Writ Appeal (MD) No.379 of 2005 has been filed against the order of the learned single Judge of the Madurai Bench of this Court, dated 18.5.2005 made in W.P.No.4407 of 2005.
Writ Appeal No.895 of 2005 has been filed against the order of the learned single Judge of this Court, dated 24.2.2005 made in W.P.No.6188 of 2005.
Writ Appeal No.1736 of 2005 has been filed against the order of the learned single Judge of this Court, dated 19.3.2005 made in W.P.No.3969 of 2005.
Writ Appeal (MD) No.107 of 2007 has been filed against the order of the learned single Judge of the Madurai Bench of this Court, dated 31.5.2006 made in W.P.No.4347 of 2006.
* * *
For appellants in : Mr.P.S.Raman, AAG for
all the W.As. : Mr.N.Muthuswami
For R.1 in : Mr.AR.L.Sundaresan for
W.A.Nos.378,379, Mr.C.S.Krishnamoorthy
895 & 1736/2005 :
For R.1 in
WA.107/2007 : Mr.K.Seshadri
For R.2 in
WA.378 & 379/05
and for R.2 in
WA.107/2007 : Ms.Geetha Thamaraiselvan, G.A.
* * *
COMMON JUDGMENT
ELIPE DHARMA RAO, J.
Since in all these matters, a common question of law is involved, all these matters are taken up for common hearing and are being disposed of by this common judgment.
2. The common facts, in a nutshell, in all these matters, are that the sole respondent or the first respondent, as the case may be, in the above cases (who are hereinafter referred to as the 'consumers', for the sake of convenience) are accused of committing electricity theft and accordingly, the Electricity Department had issued show-cause notices to them. In some cases, the consumers, have earlier approached this Court on the ground that the enquiry was conducted by the concerned Officer without serving the show-cause notices to them and this Court, has directed the authorities that the consumers should be given time to reply to the show-cause notice and if the authorities are not satisfied with the reply, an enquiry has to be conducted on a different date, after giving seven days notice and then to take a decision, whereupon a show-cause notice was issued and after following the other formalities, ultimately, assessment orders were issued to the consumers, directing them to pay the assessed loss. In some cases, civil suits are initiated challenging the assessment orders. Since the appeals filed to the higher-ups also failed, the respective consumers filed Writ Petitions No.3969 of 2005 and 6188 of 2005 before this Principal Bench and W.P.(MD)Nos.4406 of 2005, 4407 of 2005 and 4347 of 2006 before the Madurai Bench of this Court. In all the matters, a learned single Judge of this Court, while sitting both at the principal seat and also at the Madurai Bench of this Court, has disposed of the writ petitions holding as follows:
"Under the new Section 126(5) and (6) of the Electricity Act, 2003, in respect of the supply other than domestic or agricultural, the maximum period of levy for the assessment can be only for six months and the rate of such assessment cannot also go beyond 1= times the tariff applicable for the relevant category. In the impugned proceedings, admittedly, the assessment has been made for 300 days, which will amount to 10 months period and the rate of assessment is also three times of the tariff applicable to the petitioner."
3. While observing so, the learned single Judge has set aside the impugned assessment orders and directed the respondents therein viz. the Electricity Department to make the assessment strictly inconsonance with the provisions under Section 126(5) and (6) of the Act before seeking recovery of such assessment, further directing the writ petitioners/consumers to deposit certain amounts, on which the power supply shall be restored.
4. Aggrieved, the Electricity Department has filed W.A.(MD)Nos.378 of 2005, 379 of 2005 and 107 of 2007 before the Madurai Bench of this Court and W.A.Nos.895 of 2005 and 1736 of 2005 before this Principal Bench.
5. When W.A.(MD).Nos.378 and 379 of 2005 were taken up for hearing before a Division Bench of the Madurai Bench on 11.9.2006, since it was represented by the counsel appearing on either side that connected Writ Appeals are pending before the Principal Seat, the Division Bench has directed the registry to transfer W.A.(MD).Nos.378 and 379 of 2005 to the Principal Seat so as to be heard along with W.A.Nos.895 of 2005 and 1736 of 2005. Likewise, by the order of another Division Bench dated 5.9.2007, W.A.(MD)No.107 of 2007 has also been transferred from the Madurai Bench to this Principal Seat. Thus, all these matters are now before us for a common disposal.
6. The learned Additional Advocate General appearing for the appellants Electricity Board would argue that the assessments in question were made following the thefts committed prior to the coming into being of the new Electricity Act, 2003, which came into force only from 10.6.2004, but the learned single Judge has proceeded under the wrong impression that the impugned assessment orders were passed under the provisions of the new Act. It is also argued by the learned Additional Advocate General that for the theft of electricity detected before the coming into force of the new Act, the provisions of terms and conditions of supply would only be made applicable and therefore, the action initiated by the Electricity Board in these cases is valid. It is further argued that in all the cases, the alleged theft of electricity has been detected prior to the passing of the Electricity Act, 2003 and show cause notices have been issued under the Supply Act 1948 to all the consumers.
7. The learned Additional Advocate General would argue that under the Electricity Supply Act, 1948, the Board has entered into supply contracts with each of the consumers and the terms and conditions of supply of Electricity are also notified under Section 49 of the said Act and under clause 8.00, the said terms provide, inter alia, for dealing with cases of theft of energy and as per the then prevailing conditions, the penalty for theft of electricity was fixed as twice the tariff rate and the Board could make demands for a period going back to 12 months maximum. It is also argued that the Electricity Act, 2003 contains a repeal and savings Section viz. Section 185, which provides among other things, that the Electricity Supply Act, 1943 stands repealed and would specifically rely on sub-section (2) of Section 185, which saves certain actions initiated under the old Act. It is also argued that sub-section (5) of Section 185 also held that the repeal shall not affect the applicability of Section 6 of the General Clauses Act, 1897 and this is so because the allegations of theft of electricity involves penal sections as well. The further argument advanced on the part of the appellants is that the provisions of Section 126(5) and (6) of the new Act refer to an assessment only in respect of an 'unauthorised use of electricity', whereas the assessments challenged in these writ petitions were in respect of theft of electricity and it cannot be said to be part of the provisions of Section 126 of the new Act, 2003. It is further argued that the learned Judge failed to appreciate that the proceedings were initiated before the commencement of existing Act and therefore, it is not necessary to follow the provisions of Section 126 of the Electricity Act, 2003. The learned Additional Advocate General would further argue that Section 185(2)(a) of the Electricity Act, 2003 has saved the actions initiated under the old Act.
8. On the contrary, the learned senior counsel appearing for the consumers in all the above cases would argue that Section 185 of the Electricity Act 2003 repealed the Indian Electricity Act, 1910 and the Electricity (Supply) Act 1948 and there is no provision in the saving clause under the new Act with regard to assessment proceedings passed under the old Act. It has also been argued that in some cases in hand, the assessment orders passed by the Department were quashed by this Court in W.P.Nos.45233 and 4523 of 2002, dated 4.2.2005 and while allowing the writ petitions filed by the consumers, this Court has directed the authorities to decide the matter 'in accordance with law' and therefore, when there is no assessment and the assessment proceedings have to start afresh, the Department has to follow only the Electricity Act, 2003. It is also argued that Section 185(2)(a) clearly state that any action or direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of the new Act and Section 172 of the Electricity Act 2003 also does not save conditions of supply and if the Parliament desired to save conditions of supply, it would have specifically provided for the same in Section 172 or Section 185 of the Act of 2003 and in the absence of saving clause, repealed Act cannot be followed with fresh assessment proceedings. It is further argued that Section 6 of the General Clauses Act 1897 also does not have any application to the facts of the case; that Section 126 of the new Act deals with assessment procedure in matters of unauthorized use of Electricity, which include tampered meters and the same has to be followed in the present case. Regarding the contention of the Department that Section 126 of the Electricity Act will not be applicable since it deals only with unathorized use of electricity and only the provisions of Section 135 of the Electricity Act, 2003 are applicable since it relates to theft of energy, the learned senior counsel appearing for the consumers would argue that Chapter XIV of the Electricity Act 2003 deals with theft of Electricity, Section 154 of the Act deals with powers of the Special Courts for the speedy trial of offences under Sections 135 to 139 of the Electricity Act, 2003 and as per Section 153(5) of the Act, the Special Court shall alone determine the civil liability against a consumer and in the cases on hand, criminal cases for theft of energy have been registered against the petitioners and the same are pending before the concerned Court and hence if the contention of the Department is accepted, it is for the concerned Court to determine the civil liability, as per the new Act and the Department has no authority has no authority or jurisdiction to determine the assessment.
9. In the light of the above arguments and to appreciate the facts of the cases on hand, it will be useful to see, the dates of detection of the alleged theft and the dates of issuance of the show cause notice and the assessment orders in each case:
Case No. Date of detection of the alleged theft Date of issuance of the show-cause notice and assessment order, with brief facts of the case pertaining to the earlier legal proceedings.W.A.No.378 of 2005
21.3.2002 Assessment order was issued in the year 2002, which was challenged and quashed by this Court in W.A.Nos.1670 and 1671 of 2002, dated 17.6.2002, further directing the authorities to conduct fresh enquiry. The petitioner further filed W.P.No.45234 of 2002, challenging the order passed by the Superintending Engineer, who confirmed the order of assessment made by the first respondent, which was allowed on 4.2.2005, quashing the assessment order and ordering to conduct fresh enquiry.W.A.No.379 of 2005
21.3.2002
-do-W.A.No.895 of 2005
14.2.2001 Show-cause notice, dated 15.2.2001 and assessment order dated 29.3.2001 were issued the appeal filed by the consumer was dismissed on 30.6.2004 W.A.No.1736 of 2005 28.6.2001 Show-cause notice was issued on 29.6.2001. However, the consumer contended that no opportunity was afforded to him and filed W.P.No.36724 of 2003 and by the order of this Court dated 16.12.2003, fresh show-cause notice was issued and enquiry was conducted on 24.8.2004. Order of assessment was issued on 22.9.2004, which was challenged in W.P.No.29206 of 2004 and this Court, by the order dated 11.10.2004 issued a direction to file appeal. Appeal dismissed on 11.1.2005.W.A.(MD) No.107 of 2007
16.8.2001 Show cause notice was issued on 18.8.2001. Challenging the same, O.S.No.403/2001 on the file of Sub Court, Dindigul was filed. Stay of the impugned order was granted by the Sub Court on 20.9.2001 whereupon CRP.No.439 of 2002 was filed and the said CRP was disposed on 27.3.2002 on the ground that there is remedy of appeal available under Order 43 Rule 1 CPC and the EB was directed to go before the Appellate Authority. CMA.No.48 of 2002 was filed by the Department before the Prl.Dist.Judge, Dindigul and the said CMA was allowed on 21.4.2006, dismissing the stay petition. Thereafter, contending that civil Court has no jurisdiction, the consumer has filed W.P.4347/2006 before this Court for a Writ of Mandamus, to direct the authorities to follow the provisions of Sec.126 of the Electricity Act, 2003 in the enquiry.
10. From the above particulars gathered from the materials placed on record, this Court is able to assess that the Electricity Department has initiated the proceedings contemplated under the old Act, which was ruling the roost at that time, by issuing show-cause notices and the assessments orders immediately after detecting the alleged theft. But, under some pretext or other, the consumers have initiated various legal proceedings and in some cases, resulting in quashing of the assessment orders with a direction to the Electricity Board 'to decide the matter in accordance with law'. In the meantime, the new Act of the year 2003 came into force, wherein a less tariff rates are prescribed. Therefore, it has been argued on the part of the consumers that the term ' to decide the matter in accordance with law' means the date on which the order has been passed by the Court, which is strongly repelled by the appellant/Electricity Board contending that since all the actions have been initiated well prior to the coming into force of the new Act, the term 'to decide the matter in accordance with law' means to decide the matter only in accordance with the law prevailing as on the date when the alleged theft was detected by the Electricity Board. We find force in such an argument advanced on the part of the Electricity Board since all the necessary actions have been initiated well prior to the coming into force of the new Act.
11. At this juncture, an interesting question was raised on the part of the consumers that such actions of the Electricity Board are not saved under the new Act and therefore, such actions initiated by the Electricity Board are non-est in the eye of law and when once the old Act is repealed, with no saving of such actions, it must be deemed that such an Act was never brought into force. It has further been submitted that since the new Act is lenient and less burdensome when compared to the old Act, the intention of the legislature should not be overlooked. In support of his arguments, the learned senior counsel for the consumers would rely on the judgment of the Honourable Supreme Court in GAJRAJ SINGH ETC. vs. THE STATE TRANSPORT APPELLATE TRIBUNAL AND OTHERS ETC. [AIR 1997 S.C. 412] wherein a Three Judge Bench of the Honourable Apex Court has held as follows:
"Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed by it, it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not actually a reality and which the law recognises and the Court accepts as a reality. Therefore, in case of legal fiction the Court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances...."
"When there is a repeal and simultaneous re-enactment, Section 6 of the General Clauses Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters."
12. The learned senior counsel for the consumers would also rely on a Constitution Bench judgment of the Honourable Apex Court in KOLHAPUR CANESUGAR WORKS LTD. AND ANOTHER vs. UNION OF INDIA AND OTHERS [AIR 2000 SC 811], wherein it has been held:
"At common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1) (of the General Clauses Act). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision."
"It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the Court is not to look for a provision in the newly added rule for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued. In such a case the Court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such a proceeding will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari-material provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being deleted/omitted."
Therefore, now we have to see as to whether such actions of the Electricity Board are saved by the new enactment.
13. The Electricity Act, 2003 (Act 36 of 2003) has come into force from 26.5.2003 and under Section 185(1) of this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 are repealed, save as otherwise provided in the Act. Section 185(2)(a) reads as follows:
"Notwithstanding such repeal -
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;"
Further Section 185(5) reads as follows:
"Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals."
14. Now, it will be useful to refer to Section 6 of the General Clauses Act, 1897, which reads as follows:
"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
15. Relying on the above, the learned senior counsel would strenuously argue that under the new Act, the provisions which are not inconsistent with the old Act alone are saved and since in the case on hand, the provisions relating to the quantum of punishment are inconsistent with the old Act, it cannot be said that they are saved under the new Act. It is also argued that even the conditions of supply are not saved and if the Parliament desired to save the conditions of supply, it would have specifically provided for the same and in the absence of savings clause, repealed Act cannot be followed with fresh assessment proceedings. The Electricity Board would repel the above contention on the ground that the inconsistency contemplated in sub-section (2) of Section 185 is not variance in the quantum of compensation or punishment, but only in the power to levy compensation or punishment and the consumer's case of inconsistency can only be sustained if the new Act did not contain any provisions whatsoever for dealing with theft of energy and therefore, the proceedings can be continued under the old Act itself and the orders of the learned single Judge directing the Board to resume the adjudication proceedings under the new Act requires to be reconsidered.
16. In this backdrop, now it is to be seen, whether there are is any inconsistency in the new Act. A comparative table showing the differences between the new Act and the old Act was furnished by the consumers, which was neither questioned nor disputed by the appellants/Electricity Board. The said table is extracted below:
Sl.No. Repealed Electricity Act 1910, Electricity Supply Act 1948 and terms and conditions of supply of electricity framed under the old Act Electricity Act, 2003 1 Assistant Engineer can issue show-cause notice Person who inspected the service alone can issue provisional assessment 2 There is no provision for provisional assessment and final assessment Provision for provisional assessment as well as final assessment 3 There is no such provision of best assessment judgment Assessment to be made as per the best assessment judgment 4 The assessing officer need not be designated by the State Government The assessing officer must be designated by the State Government 5 The assessment can be made for a period of one year The assessment can be made for a period of six months only 6 The assessment can be made under appropriate tariff x 2 times The assessment can be made under appropriate tariff: 1 = times 7 There is no difference between agriculture service, domestic service and low tension service For agriculture and domestic service, assessment can be made for a period of three months only; for low tension service, assessment can be made for a period of six months
17. But, from a reading of Section 185(2)(a) of the Electricity Act, 2003, all the actions taken or purported to have been done or taken including any rule, notification, inspection, order or notice made are saved. Furnishing the above details, it has been argued on the part of the consumers that since there are inconsistencies, such orders issued by the Department cannot be considered as saved under the new Act. We are unable to appreciate the said contentions raised on the part of the learned senior counsel for the consumers since the variance in the tariff rates cannot be considered as an inconsistency. If under the old Act such a punishment is contemplated and under the new Act no punishment is contemplated or electricity theft has not been recognised as an offence at all, then it can be said that there are inconsistencies, which is not the case here. Thus deciding this question, now we shall proceed to consider as to whether the consumers in the cases on hand are entitled to claim to initiate the proceedings only under the new Act, which prescribed lesser multiplier and tariff rates.
18. The straight case of the appellants is that since all the alleged offences in the cases on hand are committed and detected well before the coming into force of the new Act and even the proceedings were initiated under the old Act, the consumers are liable to pay the tariff rates only as prescribed in the old Act and the multiplier and the tariff rates prescribed in the new Act are not applicable to the consumers in the cases on hand. But, on the part of the consumers, it was strenuously contended that since the old Act whereunder the impugned proceedings are issued itself was repealed without saving such actions, it should be construed that such an Act was never existed. But, as has already been held, this argument of the consumers has no legs to stand before us since it has been held by us that such actions of the Department being pending proceedings or orders are very well covered and saved under Section 185(2)(a) of the new Act, 2003.
19. As could be seen from the table, giving particulars regarding the dates of detection of the alleged thefts and the dates of initiation of the proceedings by the Electricity Department, it is clear that all the assessment orders were issued well before the coming into force of the new Act and even legal proceedings were initiated by the consumers, challenging such assessment orders and in some cases, directions were issued to issue fresh assessment orders, after quashing the earlier assessment orders. Accordingly, new assessment orders were issued by the Electricity Department, probably after rectifying the queries pointed out by the legal fora, by which time the new Act came into force. It is also to be pointed out that the proceedings initiated by the Electricity Department were dragged on by the consumers under some pretext or other, initiating one proceeding or other and when the new Act came to force, whereunder the tariff rates are reduced, they have changed the stance and started arguing that they must be extended the benefit of new tariffs prescribed under the new Act. These are the matters whereunder theft of electricity worth Lakhs of rupees is the subject matter and if proved, the consumers are liable for punishment under the criminal proceedings initiated by the Department. When such is the factual matrix wherein the original proceedings initiated by the Department were successfully dragged by the consumers till the new Act came into force, at no stretch of imagination, we can find fault with the Department in initiating the proceedings under the old Act since even when a new assessment order has to be issued, as directed by the Courts, since the date of detection of the offence and the period of commission of such offence and even the date of issuance of the original assessment orders are well prior to the coming into force of the new Act, the tariff rates as are applicable on the date of commission of offence alone are applicable and just for the simple reason that the new Act has prescribed lesser tariffs, it cannot be made applicable to the cases of the consumers particularly since such assessment orders are saved under Section 185(2)(a) of the 2003 Act. Further more, probably recognising the difficulties being faced by the Department in such matters, a new Amendment has been brought to fore w.e.f. 13.6.2007 whereunder both the multiplier on the tariff rate as ell as the period of assessment have been amended so as to bring the new Act of 2003 on par with the pre-existing provisions under the old Act of 1948 viz. twice the rate and 12 months and therefore, as on today, there is no difference in imposing penalties between the 1948 Act and the 2003 Act , as has been rightly contended on the part of the appellants/Electricity Board.
20. The learned senior counsel appearing for the consumers would rely on a judgment of the Honourable Apex Court in MOHADEOLAL KANODIA vs. THE ADMINISTRATOR GENERAL OF WEST BENGAL [AIR 1960 SC 936], wherein it has been held:
"The principles that have to be applied for interpretation of statutory amendments taking away substantive rights are well established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective; and the retrospective operation will be limited only to the extent to which it has been so made by express words or necessary implication. The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal, grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted. The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should be discarded and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had will be put on the words, if necessary, even by modification of the language used."
21. This judgment cannot be applied to the facts of the cases on hand since no such substantial right accrued on the consumers has been taken away by the new Act, since all the proceedings were initiated well before the commencement of the new Act and they were dragged on by the consumers till the new Act came into force and changed their stance claiming benefits under the new Act, which was even amended in 2007.
22. The learned senior counsel appearing for the consumers would also rely on another judgment of the Honourable Apex Court in COMMISSIONER OF INCOME-TAX, U.P.-II, LUCKNOW vs. BAZPUR CO-OPERATIVE SUGAR FACTORY LTD., BAZPUR, DIST.NAINITAL [AIR 1988 SC 1263], wherein it has been held:
"In the absence of any power to amend bye-laws retrospectively, being conferred, either expressly or by implication, it could not be said that the society had any power to amend its bye-laws with retrospective effect and, in this view, the provisions of the unamended bye-law were to be applied, it was clear that the amounts which were deducted by the society from the price payable to its members on account of supply of sugarcane were deducted by the society in the course of the trading operations of the society and these deductions were a part of its trading operations. The receipts by way of these deductions must, therefore, be regarded as revenue receipts and were liable to be included in the taxable income of the society. It made no difference that in the bye-law the amounts had been referred to as deposits and the account in which receipts were entered was called "Loss Equilisation and Capital Redemption Reserve Fund."
This judgment also has no application to the facts of the cases on hand since no retrospective effect has been given to the assessment orders, but they were re-issued as per the law prevailing as on the date of commission of the offence, after rectifying the mistakes pointed out by the legal fora and it cannot be said such issuance of assessment orders amounts to giving retrospective effect.
23. The learned Additional Advocate General appearing for the appellant would rely on a judgment of the Honourable Apex Court in M/s.NAGAMMAI COTTON MILLS THROUGH ITS MANAGING DIRECTOR vs. REGIONAL DIRECTOR, ESI, MADRAS AND ANOTHER [1994 Supp (2) SCC 142], wherein a Three Judge Bench of the Honourable Apex Court, in a case of arrears of special contribution falling due when Chapter V-A of the Employees State Insurance Act, 1948 and initiation of proceedings for recovery of, subsequent to repeal of Chapter V-A was held permissible.
24. In AGRICULTURAL AND PROCESSED FOOD PRODUCTS vs. OSWAL AGRO FURANE AND OTHERS [(1996) 4 SCC 297], relied on by the learned Additional Advocate General, the Honourable Apex Court has held 'a saving provision merely preserves right or obligation that exists and does not and cannot confer any new additional right or obligation, since it is different from exemption provision.'
25. As has already been adverted to supra, serious allegations of theft of energy worth lakhs of rupees is made against the consumers in the cases on hand and only at their instance the proceedings were either stalled or dragged on till the new Act came into force. When, as per the directions of the legal fora, fresh assessment orders were issued following the procedure prevalent as on the date of detection of the alleged theft, the consumers have initiated these proceedings to further drag on the matters, with the sole aim of avoiding or delaying the amounts assessed. It is also to be pointed out that by the new amendment Act of the year 2007, the tariff rates prevalent in the old Act are restored. Since the commission of offence, its detection and the commencement of the necessary proceedings all took place before the coming into force of 2003 Act, the consumers cannot claim any benefits during the interregnum period of 2003 Act and the 2007 Act. Therefore, the other argument advanced on the part of the consumers that only the special Court is entitled to determine the civil liability against the consumer, as per Section 153(5) of the Electricity Act, 2003 and hence, the assessment orders issued by the electricity Department shall be quashed on that ground also, does not arise for consideration in the cases on hand, in view of our specific finding that for the cases in hand, only the provisions of the old Act are applicable.
26. The consumers relied on the order of a learned single Judge of this Court, dated 25.2.1998 made in W.P.Nos.9026 and 9027 of 1997, declaring Chapter 37, Schedule 1 of Terms and Conditions of Supply of Electricity framed by the Board as ultravires of the powers of the Electricity Board and violative of Article 14 of the Constitution of India and hence void, illegal and invalid. This order relied on by the consumers being the order of a learned single Judge is not binding on us. However, it will have a persuasive value and further more, we are not apprised as to whether this order of the learned single Judge was challenged anywhere and with what result. Therefore, without going into the discussion on this point, it is to be pointed out that the consumers in the cases on hand never challenged the terms and conditions of supply and having successfully dragged on the proceedings, by initiating one proceeding or the other, under one pretext or other, sufficiently for a long time, now this new plea has been taken by them to further drag on the proceedings. As has already been stated supra, the consumers were changing their stands, to suit their convenience to avoid payment of the amounts claimed by the Department that too on a serious charges of theft of energy and both the assessing officer and the appellate authority have given proper and cogent reasons to substantiate the assessment. Therefore, in the peculiar facts and circumstances of the case, this stand taken on the part of the consumers cannot be appreciated.
27. A careful study of the entire materials placed on record would establish, in more than one way, the sole intention of the consumers in these cases to avoid the payment of the amounts claimed under the assessment orders, passed by the Department, on having found them to have committed electricity theft, which is a very serious offence. The Electricity energy generated and distributed is a 'material source of the community'. There can be no doubt that such electricity thefts would paralyse the entire system, besides putting the Electricity Boards and consequently the State in a pathetic situation, leading to chaos and shortage in supplies to the genuine consumers also, which should be avoided by strict adherence of the laws and none should be allowed to resort to collapse the entire system impairing very purpose of such laws and such menace should be curbed with an iron hand for the betterment of the Society at large.
In the light of our above discussion, we find that the orders passed by the learned single Judge are not sustainable under law and accordingly, the orders passed by the learned single Judge in all these matters are set aside and all these appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
Index: Yes Internet: Yes (E.D.R., J.) (S.R.S., J.) Rao 5.2.2008 To The Secretary, Energy Department, Government of Tamil Nadu, Fort St.George, Chennai-600009 ELIPE DHARMA RAO, J. AND S.R.SINGHARAVELU, J. (Rao) Pre-delivery common judgment in WA(MD)No. 378 of 2005 etc.batch 5.2.2008