Madras High Court
A.Abdul Masjit vs The Assistant Executive Engineer on 17 December, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.12.2018
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)Nos.9445 of 2009,
W.P.(MD)No.7390 of 2015 and
M.P.(MD)No.2 of 2009
W.P.(MD)No.9445 of 2009
A.Abdul Masjit ... Petitioner
Vs.
The Assistant Executive Engineer,
Distribution/North,
Tamil Nadu Electricity Board,
Arasaradi, Madurai. ... Respondent
PRAYER : Writ Petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified
Mandamus, calling for the records of the respondent herein in
his proceedings in Lr.No.AEE/D/N/ARDI/METRO/MDU/CI.I/
F.No.Theft/D/No/263/08 dated 31.07.2008 quash the same
and to direct the respondent to return of money Rs.20,000
collected from the petitioner during the inspection.
http://www.judis.nic.in
2
W.P.(MD)No.7390 of 2015
A.Abdul Masjit ... Petitioner
Vs.
1. The Chief Engineer(Distribution),
Tamil Nadu Electricity Board,
Madurai Division,
K.Pudur, Madurai – 625 007.
2. The Executive Engineer,
Tamil Nadu Electricity Board,
Madurai Division,
Samayanallur Distribution,
Madurai.
3. The Assistant Executive Engineer,
Distribution/North,
Tamil Nadu Electricity Board,
Arasaradi,
Madurai. ... Respondents
PRAYER : Writ Petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing
the respondents to receive petitioner's application dated
22.09.2014 and to effect the transfer of electricity connection
in service No.388 from the land in survey No.1/8 to the land in
survey No.109/2, situated at Keezhamathur Village, Madurai
District, belongs to him by considering his representation dated
14.10.2014.
http://www.judis.nic.in
3
(in both W.Ps.)
For Petitioner : Mr.G.Chandrasekar
For Respondents : M/s.S.Srimathy,
for Mr.S.M.S.Johny Basha
***
COMMON ORDER
The Writ petitioner was granted free agricultural electricity service connection No.358 under Tariff IV for agricultural purpose. On 03.03.2008, at 13.05 hours, the respondent inspected the said connection. It was found that the free agricultural service connection was used to supply water to the adjacent nursery garden belonging to one Annalakshmi.
2. It is seen from the materials on record that the respondent issued notice dated 03.03.2008 informing the petitioner about the proposed inspection. An Observation Magazar was also prepared. It can be seen therefrom that the nursery garden of the said Annalakshmi was not having any http://www.judis.nic.in 4 electricity connection. Even a generator was not installed. The only source of water supply for the said nursery garden was from the storage sump maintained by the petitioner. The respondent came to the conclusion that an offence of theft of energy has been committed. Since the petitioner came forward to compound the offence, proceedings under Section 152 of the Electricity Act, 2003, were issued and the Writ petitioner was called upon to pay a sum of Rs.12,000/- towards compounding of the offence. Thereafter, the Writ petitioner paid the said amount.
3. The respondent thereafter issued provisional assessment order dated 04.04.2008 and called upon the petitioner to pay a sum of Rs.1,05,884/- in order to offset the approximate loss caused by the petitioner due to dishonest abstraction of electricity supply. A calculation sheet was enclosed with the said provisional assessment order. The petitioner submitted his explanation dated 29.04.2008 and called upon the respondent to reduce the above amount. http://www.judis.nic.in 5
4. The petitioner also filed W.P.(MD)Nos.10887 and 10888 of 2008 questioning not only the proceedings issued under Section 152 of the Electricity Act, but also the provisional assessment order dated 04.04.2008. The Writ petitioner could not get any relief before the learned Single Judge. He therefore filed W.A.(MD)Nos.428 and 429 of 2009. The Writ appeals were dismissed by order dated 21.08.2009. Thereafter, the impugned final order dated 31.07.2008 came to be passed by taking into account the payment already made by the petitioner, and he was called upon to pay a further sum of Rs.97,584/-.
5. Heard the learned counsel appearing for the Writ petitioner and the learned Standing counsel appearing for the respondents.
6. The stand taken by the Writ petitioner is that he did not indulge in direct tapping of electricity as projected in the http://www.judis.nic.in 6 impugned proceedings. His specific contention is that he only helped his neighbour as a good samaritan. Mens rea is a core element to charge a person with theft of electricity. In this case, the petitioner did not have any dishonest intention. He also pointed out that the respondent did not take any step to find out the period of unauthorised use of electricity. He also complained of violation of the principles of natural justice.
7. The learned Standing counsel appearing for the respondent would place reliance on the decision of the Hon'ble Supreme Court reported in (2012) 2 S.C.C. 108 (The Executive Engineer Vs. Sri Seetaram Rice Mill).
8. Even if this Court comes to the conclusion that the case of the Writ petitioner did not fall within Section 135 of the Electricity Act, 2003, it would certainly falls within the scope of Section 126 of the Electricity Act. After getting instructions,the learned Standing counsel fairly conceded that the petitioner did not indulge in any direct tapping of electricity. http://www.judis.nic.in 7
9. A mere look at the impugned order dated 31.07.2008 indicates that the respondent proceeded against the petitioner on two grounds. According to the respondent, the petitioner indulged in direct tapping of electrical energy. The water drawn by the petitioner by use of such energy was used for nursery garden of the neighbour, namely, Annalakshmi. There is absolutely no material on record to show that there was any direct tapping of electricity as alleged. The learned Standing counsel also fairly informed this Court after getting instructions in this regard that the case against the petitioner is founded more on unauthorised usage of electricity. According to the learned Standing counsel, the petitioner was given free electricity service connection. It was meant for the petitioner's agricultural lands. But the petitioner after storing the water, allowed the neighbour to use the same for her nursery garden. The nursery garden is classified as coming under Horticulture. It cannot be characterised as agriculture. It is for commercial purposes. Therefore, the learned Standing counsel would point http://www.judis.nic.in 8 out that the case of the petitioner would fall within the explanation “(4)” of Section 126 of the Electricity Act.
10. I am in full agreement with the aforesaid stand of the learned Standing counsel appearing for the respondents. In fact the Writ petitioner himself appears to have conceded this position. Even in his representations to the respondents, he is only pleading for reduction of the assessment amount. The petitioner had compounded the offence by paying a sum of Rs. 12,000/-. I really doubt, if any case of theft of energy has been made out. Merely because, the Writ petitioner came forward to compound, the respondent would not be justified in taking advantage of the same. If really no offence of theft of electrical energy was ever committed by the petitioner, the respondent is directed to bear this in mind while passing fresh orders.
http://www.judis.nic.in 9
11. Be that as it may, the Writ petitioner has actually indulged in unauthorised use of electricity. But then, in such a case the assessment officer shall make the assessment only for the period during which such unauthorised use of electricity has taken place. Only if it is unable to ascertain the same, he shall apply the standard formula. Therefore, in the very nature of things, the Writ petitioner must be put on notice. In fact in this case no doubt, provisional assessment was made. But I am of the view that even before making provisional assessment, the assessment officer must put the petitioner on notice and find out the period during which the unauthorised use of electricity has taken place. In this case no such attempt was ever made. The assessment officer erred in assuming that the Writ petitioner was guilty of direct tapping of electricity. He did not even endeavour to find out the period during which the unauthorised use of electricity has taken place. Thus, there is a clear violation of the statutory mandate set out in Section 126(5) of the Electricity Act.
http://www.judis.nic.in 10
12. In this view of the matter, the order impugned in W.P. (MD)No.9445 of 2009 is set aside. The matter is remitted to the file of the respondent to pass orders afresh in accordance with law. W.P.(MD)No.9445 of 2009 stands allowed, accordingly.
13. The respondents in W.P.(MD)No.7390 of 2015 are directed to pass final orders in the matter within a period of four weeks from the date of receipt of a copy of this order. The respondents have not considered the petitioner's application citing the non-payment of arrears by the assessee. Since this Court has passed an order directing the respondents to dispose of the matter within a period of four weeks, the petitioner's case for shifting of electricity connection can be taken up immediately. W.P.(MD)No.7390 of 2015 stands disposed of. No costs. Consequently, connected Miscellaneous petition is closed.
17.12.2018 Index : yes/No http://www.judis.nic.in 11 Internet:Yes/No pmu To
1. The Chief Engineer(Distribution), Tamil Nadu Electricity Board, Madurai Division, K.Pudur, Madurai – 625 007.
2. The Executive Engineer, Tamil Nadu Electricity Board, Madurai Division, Samayanallur Distribution, Madurai.
3. The Assistant Executive Engineer, Distribution/North, Tamil Nadu Electricity Board, Arasaradi, Madurai.
http://www.judis.nic.in 12 G.R.SWAMINATHAN,J.
pmu W.P.(MD)Nos.9445 of 2009, W.P.(MD)No.7390 of 2015 and M.P.(MD)No.2 of 2009 17.12.2018 http://www.judis.nic.in 13 http://www.judis.nic.in