Madras High Court
S.Anandan vs The Executive Engineer on 21 March, 2014
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.03.2014
CORAM
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
W.P.No.25078 of 2012
and
M.P.No.1 & 2 of 2012
S.Anandan ... Petitioner
Vs
1. The Executive Engineer,
Erection and Maintenance,
Tamil Nadu Electricity Board,
Hosur, Krishnagiri District.
2. Assistant Executive Engineer,
Tamil Nadu Electricity Board,
Pahalur Division,
Krishnagiri District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a writ of Certiorarified Mandamus, to call for the records made in No.AEE/O&M/Bagalur/F Court case/D.No.067/12 dated 1.8.2012 on the file of Second Respondent herein and Quash the same as illegal and direct the Respondents to Restore Electricity to the Petitioner's Poultry Farm situated at Athimugam, Narasipuram Road, Hosur, Krishnagiri District in S.C.No. 511-3B to secure the ends of justice.
For Petitioner : Mr.R.Sankarasubbu
For Respondents No. 1& 2 : Mr.G.Vasudevan
Standing Counsel for TNEB
ORDER
The Petitioner has preferred the instant writ of Certiorarified Mandamus in calling for the records in impugned letter No.AEE/O&M/Bagalur/F Court case/D.No.067/12 dated 1.8.2012 on the file of 2nd Respondent and to quash the same as an illegal one. Further, he has sought for passing of an order by this Court in directing the Respondents to Restore Electricity to his Poultry Farm in S.C.No. 511-3B situated at Athimugam, Narasipuram Road, Hosur, Krishnagiri District.
2. The Writ facts:
The Petitioner is the Sole Proprietor of Lingeswara Poultry Farm, Athimugam and his Farm had Electric Connection over 10 years in S.C.No.511-553. In August 2000, his Meter reading was checked and the same was disconnected on suspicion a case was registered in C.C.No.20 of 2001 under Section 3(a) (i) and 44 (1) (c) of Indian Electricity Act on the file of Learned Judicial Magistrate No.1, Hosur. In the said criminal case, the Petitioner was honourably acquitted on 04.10.2002 and thereafter, he pleaded with the Respondents to restore the electricity since there was no basis for prosecution to file the case.
3. The Petitioner made a representation dated 20.01.2003 to the Respondents to restore the Electricity in S.C.No.511/3B to his Farm and sent a reminder on 20.02.2003 which were of no avail. His plea is that the act of the Respondent in refusing to restore the Electricity in S.C.No.511/3B to his Farm at Athimugam by considering the representation dated 20.01.2003 is unjust and illegal one. As such, he filed W.P.No.17887 of 2003 before this Court to consider the representation as stated supra. Based on the order passed by this Court in the said writ petition, the Respondents imposed condition to restore Electricity. In this regard, he filed W.P.No.36213 of 2003 and pending the writ petition, this Court directed him to deposit Rs.3,00,000/- to restore Electricity.
4. Being dissatisfied with the order so passed in W.P.No.36213 of 2003 dated 05.03.2004, the Petitioner filed in W.A.No.2554 of 2004 and this Court on 28.10.2004 passed an order to the effect that the Criminal Revision filed against the order of the Learned Magistrate was dismissed and thereby allowed the Writ Appeal as the condition imposed by the Learned Single Judge in Criminal Revision No.10 of 2003 could not be sustained and the electricity service connection to be restored within a week from the date of receipt of copy of this order. In fact, the writ appeal gave a quietus to the entire controversy.
5. The Respondents based on an infructuous writ petition, in which earlier show cause notice had challenged in W.P.No.21071 of 2000 and W.P.No.19591 of 2002, but, omitted to consider the judgment dated 28.10.2004 in W.A.No.2554 of 2004 and suddenly, cut off the Electricity. Further, the Petitioner while responding to the impugned letter dated 01.08.2012 of the 2nd Respondent furnished a reply in the form of representation dated 07.05.2012.
6. Counter averments of the Respondents:
The Petitioner being an 'Agreement Holder' is bound by the terms and conditions of supply of electricity, Tamil Nadu Electricity Distribution Code and Supply code 2004. He is the Sole Proprietor of Lingeswara Poultry Farm, Athimugam and the Farm had electric connection over five years in S.C.No.511-III B and during August, 2000, his meter reading checked by A.P.T.S., Electricity Board and the same was inspected by the Assistant Executive Engineer/APTS/ Dharmapuri in the presence of Siddhappa who is the user of the service connection. It was found out that there was a theft of energy by bypassing the two phases of three phase meter in the said service connection No.511-III B. As such, the Petitioner is liable to pay the extra levy for the energy stolen and the same is worked out to Rs.12,38,165/- in terms of Clause 8.02 of the Schedule.
7. The 2nd Respondent issued a Show Cause Notice dated 01.08.2012 to the Petitioner calling upon to explain as to why the Board should not recover the loss by imposing an extra levy in accordance with the terms and conditions of supply of electricity should not be collected from him. The Compounding Charges were levied to give up the criminal case and the Extra Levy was imposed as per terms and conditions of supply. Because of theft of energy, the Board had been put to Revenue loss to an extent of Rs.12,38,165/-. Hence, the writ petitioner is liable to pay the charges so as to obtain reconnection. The impugned order passed by the Board is a valid one. Even, the observation of the Court in the first appeal would not stand in the way of disposal of the present writ petition on its own merits. Also that, an acquittal in the criminal court would not absolve the liability of the consumer to pay the extra levy.
8. W.P.No.21071 of 2000 was dismissed for non prosecution on 12.11.2009. Further, another writ petition W.P.No.19591 of 2002 was again dismissed with cost of Rs.1000/- payable to the Hon'ble High Court Legal Aid Services Authority and it was not complied with. Once again, the Petitioner filed W.P.No.36213 of 2013 and conditional order was imposed with and the same was not complied with. Although W.A.No.2554 of 2004 was allowed by this Court, there was a direction to dispose the writ petition on merit uninfluenced by the order so passed. Pursuant to the order in Writ Appeal No.2554 of 2004, the electric department restored the electricity connection even during the year 2004. In view of the dismissal of the two writ petitions as stated supra, the impugned order dated 01.08.2012 was passed by the 2nd Respondent and therefore, there is no merit in the writ petition filed by the Petitioner. As a matter of fact, the board was given by letter dated 01.08.2012 to pay the extra levy of Rs.12,38,165/- by granting seven days time to the petitioner. However, he had not complied with the order of the 2nd Respondent. As such, service connection was disconnected on 17.08.2012 at 5.00 p.m.
9. Petitioner's contentions:
The Learned Counsel for the Petitioner submits that the order of the 2nd Respondent in impugned letter No.AEE/O&M/Bagalur/F Court cases D.No.067/12 dated 01.08.2012 requesting the petitioner to pay the penalty amount of Rs.12,38,165/- towards the theft of energy deducted by the AEE /APTS / Dharmapuri in the S.C.No.511, Tariff- III B, Athimugam Distribution on 09.08.2000, without any further delay, within seven days from the date of receipt of this notice etc., is an illegal and arbitrary one.
10. It is the contention of the Learned Counsel for the Petitioner that the requirement of the 2nd Respondent that the Petitioner is to pay the penalty amount of Rs.12,38,165/- towards the theft of energy through impugned letter dated 01.08.2012 is quite contra to the order of this Court dated 28.10.2004 in W.A.No.2554 of 2004 and resultantly, the said order is against the Article 21 of the Constitution of India.
11. The Learned Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in Ravinder Singh V. Sukhbir Singh and others, (2013) 3 SCC (Criminal) at page 891 and at special page 892, whereby and whereunder it is held as follows:-
The High Court in the criminal contempt case has already dealt with the issue involved herein and the matter stood closed at the instance of Respondent 1 himself. Therefore, there can be no justification whatsoever to launch the instant criminal prosecution on the said basis afresh. The inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is in built in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable compliant. In this view, the instant complaint filed by Respondent 1 under the provisions of the SCs and STs Act is hereby quashed.
12. In effect, the submission of the Learned Counsel for the petitioner is that when the Petitioner was honourably acquitted in C.C.No.20 of 2001 on the file of the Learned Judicial Magistrate No.1, Hosur, and also, when the Criminal R.C.No.10 of 2003 was dismissed and that apart, when in W.A.No.2554 of 2004 on 28.10.2004, this Court in paragraph No.2 had allowed the writ appeal by observing that the condition imposed by the Learned Single Judge could not be sustained and directed to dispose the writ petition on merits without reference to the order in judgment in writ appeal etc., then the writ appeal had given a quietus to the entire controversy and resultantly, the impugned order passed by the 2nd Respondent requesting the petitioner to pay the penalty amount of Rs.12,38,165/- towards the theft of energy is an illegal one.
13. Respondents' Submissions:
Per contra, it is the contention of the Learned Counsel for the Respondents 1 & 2 that the Petitioner being an agreement holder is bound by the terms and conditions of Supply of Electricity, Tamil Nadu Electricity Distribution Code and Supply Code 2004 and then, the acquittal by the criminal Court in S.C.No.20 of 2001 on the file of the trail Court would not assault the liability of the consumer to pay the extra levy.
14. Advancing his arguments, the Learned Counsel for the Respondents 1 & 2 projects an argument that W.P.No.21071 of 2000 filed by the Petitioner was dismissed for non-prosecution on 12.11.2009 and another W.P.No.19591 of 2002 filed by him was again dismissed with a cost of Rs.1,000/- payable to the High Court Legal Aid Services Authority and the said order was not complied with. Apart from the above, the writ petitioner filed W.P.No.36213 of 2003 and conditional order was imposed thereunder and the same was not complied with. In view of the dismissal of two writ petitions, it is the plea taken on behalf of the Respondents that the Electricity Supply was disconnected on 17.08.2012 at 5.00 p.m.
15. The Learned Counsel for the Respondents 1 & 2 contends that acquittal in criminal case of theft of electric energy by the Petitioner would not absolve the authorities to claim the penalty from him, and to lend support to his contention, he relies on the decision of this Court M/s. Hindustan Engineering Industries, L-3, Industrial Estate, Ambattur, Madras 58 represented by its Proprietor, G.Venugopalan V. The Assistant Divisional Engineer, O & M, Madras Electricity System, Distribution/North First Cross Road, Industrial Estate, Ambattur, Madras and others, (1995) 2 MLJ 429, wherein, it is observed and held as follows:
The Respondents (Tamil Nadu Electricity Board) are entitled to proceed on the basis that there has been theft of electricity energy if they find on inspection that artificial means had been adopted by the consumer. Unless the petitioners are able to establish that there were no such artificial means in the meter box or that the artificial means are not intended for abstracting electrical energy, one has to proceed on the basis that such artificial means indicate that the consumer had indulged in pilferage of electricity energy. The court can take judicial notice of the fact that the pilferage of electrical energy especially in factories and industries is very rampant in this State. It is true that the petitioner has been acquitted of the charge of theft in the criminal case instituted against him in C.C.No.583 of 1989. But that will not absolve the consumer from the departmental action to assess the loss suffered by the Board.
16. He also cites the Division Bench Judgment of this Court in Executive Engineer (Distribution), Tamil Nadu Electricity Board, Thiruchendur V. S.J.Gayas and others, (2008) 2 MLJ 812, and at special page 813, whereby and whereunder it is observed and held as follows:
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, the Court 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. 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.
17. The Learned Counsel for the Respondents 1 & 2 seeks in aid of the decision of this Court M/s. Far East Tanning Company, by its partner N.M.Sadhathulla V. The Superintending Engineer, (West) Vellore Electricity System, Gandhi Nagar, Vellore and another, AIR 1999 (2) 447, wherein it is observed as follows;
Once it is found that the meter was tampered with and once it is further proved that the meter stood in the name of the petitioner, petitioner cannot escape the financial liability arising out of the theft merely because he was acquitted by the criminal court.
18. Discussions:
In regard to the compounding of offences under the Tamil Nadu Electricity Supply Code, 2004, Clause 24 reads as follows:
24. Compounding of offences. - Section 152 of the Act which deals with compounding of offences reads as:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below:
Nature of Service Rate at which the sum of money for compounding to be collected per Kilowatt (KW) / Horse Power (HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere (KVA) of contracted demand for High Tension (HT).(1) (2)
1. Industrial Service
2.Commercial Service
3.Agricultural Service
4. Other Services Twenty thousand rupees ;
ten thousand rupees;
two thousand rupees;
four thousand rupees;
Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.
(2) On payment of the sum of money in accordance with sub section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any Criminal Court.
(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empoowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) The compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer.
19. The rights to recover the charges secured by the electricity Board is not destroyed by the Limitation Act, as opined by this Court. However, for an arrears of payment of Electricity charges, the Electricity Board can disconnect the service.
20. As a matter of fact, Clause 18 of the terms and conditions of the Tamil Nadu Electricity Board deals with 'Installation of Capacitors'. Added further, Clause 8.02 of the terms and conditions of the Tamil Nadu Electricity Board runs as under:-
8.02. Within a door number or sub-door number an establishment or person will not be given more than one service connection. Where more than one person or more than one establishment is in occupation of a door number or sub-door number, more than one service connection will be given only if there is a permanent physical segregation of areas for which different service connections are applied for.
However, more than one service connection in a door number/sub-door number will be given if the second service connection is for a welding set in the same door number- sub-door number.
In agricultural connections where the consumer requires a separate service connection for utilising energy for radios and other appliances including domestic lighting in the farm house, more than one service connection in the same survey field number- sub-divided survey field number will be permitted.
The existing High Tension Consumers who want to avail a separate service for their expanded industrial activities within a door number or sub-door number (in the same premises) a new service connection shall be given.
21. Also, Clause 8.03, enjoins as follows:
8.03 Upon receipt of an application for supply of electricity a notice will be sent to the intending consumer that he or the contractor acting on his behalf or his representative should meet the Engineer of the Board to agree on the position of the point of supply cut-out or circuit-breaker and meter. The Board will in no case fix its meter, cut-out etc., nor allow the same to remain in any position which will entail entry by its employees into purdah or religious quarters.
22. The Learned Counsel for the Respondents 1 & 2 refers to Clause 19.18 of the terms and conditions of Tamil Nadu Electricity Board which runs as follows:-
19.18 Where any consumer having more than one service connection, defaults in payment of dues relating to any one of the service connections, the Board may cause other service connections in the name of the consumer to be disconnected till all the arears due for all the service connections are paid, notwithstanding the fact that the service connections are covered by separate agreements.
23. Indeed, Clause 37 of the terms and conditions of Tamil Nadu Electricity Board deals with 'Violations and theft of energy'. Continuing further, under Clause 37 and 8.00 under the Caption 'theft of energy and extra levy', in Clause 8.01 to 8.06, it is mentioned as follows:-
8.00 THEFT OF ENERGY AND EXTRA LEVY:
8.01. Any consumer who dishonestly abstracts or uses energy shall be deemed to have committed theft within the meaning of Indian Electricity Act, 1910 as amended by the Tamil Nadu Government and the Indian Penal Code and the existence of artificial means of such abstractions shall be prima facie evidence of such dishonest abstraction. Illegal restoration of supply to a disconnected service connection will fall under this category.
8.02. 1( Extra levy for theft of energy by tampering of meters/meter seals will be made at the rates given below:-
1( Substituted for the words Extra levy for theft of energy will be made for a period of twelve months or from the date of service connection to the date of detection, whichever period is less, at the rates given below by Tamil Nadu Electricity Board Permanent B.P (FB) No.80, dated 26th April, 2000. )
(a) for a period of twelve months; or
(b) for a period from the date of prior inspection if any by the APTS or MRT wing to the date of detection: or
(c) for a period from the date of replacement of meter to the date of detection; or
(d) for a period from the date of service connection to the date of detection whichever period of the above is less.
For other cases of theft of energy, the extra levy will be made for a period of twelve months or from the date of service connection to the date of detection whichever period is less at the same rates given below.)
(i) For Energy-
(a) Low Tension Service Connections:
Highest Low Tension tariff rate x 3 The charges arrived at will be rounded off to the next higher rupee.
(b) High Tension Service Connections:
Highest High Tension Tariff rate x 4 The charges arrived at will be rounded off to the next higher rupee.
(ii) For maximum demand -
(In High Tension Service Connections) Highest High Tension Tariff rate for maximum demand x 4 Extra levy for illegal restoration of supply to a disconnected service connection will be made for a period of twelve months immediately preceding the date of detection of the violation or for the period from the date of disconnection of the service connection to the date of detection of the illegal restoration, whichever period is less, at the rates given above.
In cases of theft of energy committed by the persons other than Board's consumers in the event of temple festival, marriage function and any other occasions which are incidental in nature, the period of theft shall be decided on the basis of periods of existence based on the proof of erection and existence of such loads. The compensation charges shall be levied as per Clause 8.03 duly limiting the duration in days for the period of theft to be decided based on the proff of erection and existence of such loads, and at rates indicated in Clause 8.02 i (a) of Schedule Part I of Terms and Conditions of Supply of Electricity.
8.03. The extra levy will be assessed as follows:
Low Tension Service Connections The quantity of units consumed shall be worked out by means of the following formula, adopting the figure, furnished in the Tables 'A' and 'B' given below:-
FORMULA Units Consumed - Connected load in KW found at the time of inspection divided by Diversity factor x load factor x number of hours per day x duration in days (vide Clause 8.02).
TABLE 'A' Category Diversity Factor Load Factor Number of hours per day 1 2 3 4
(a) Domestic 2.0 40% 12
(b) Non-domestic and Commercial 1.1 90% 12
(c) Industrial including cottage industries 1.0 80% As per details in the Table 'B' below
(d) Public Lighting 1.0 100% 8
(e) Agricultural 1.0 80% 10
(f) Hut 2.0 40% 12 TABLE 'B' Category Number of hours per day 1 2
1. Fed by High Tension rural feeders having only 14 hours of supply per day-
(i) Day shift only
(ii) Night shift only
(iii) Both day and night shifts 6 8 14
2. Fed by High Tension feeders having 24 hours of supply -
(i) Day shift only
(ii) 2 Shifts
(iii) 3 Shifts 8 16 24 High Tension Service Connections:
(i) Demand Charges. - For the purpose of assessment of maximum demand for the month, the sanctioned demand of the consumer will be taken as the maximum demand.
(ii) Energy Charges.- Quantity of electricity consumed will be worked out as under:
(a) Industrial-
One shift: Maximum Demand in kW x 8 hours x Duration in days (vide Clause 8.02) Two shifts: Maximum Demand in kW x 16 hours x Duration in days (vide Clause 8.02) Three shifts : Maximum Demand in kW x 24 hours x Duration in days (vide Clause 8.02)
(b) Non-industrial -
Maximum Demand in kW x 12 hours x Duration in days (vide Clause 8.02) 8.04. The energy consumption arrived at as per Clause 8.03 will be charged excluding the energy consumption recorded by the meter as per the rates specified in Clause 8.02 of this Schedule, for both High Tension and Low Tension service connections. If any consumer desires to prefer an appeal to the appellate authority he may do so within sixty days from the date of receipt of the assessment notice by him.
8.05 The following will be the procedure for collection of the extra levy:
On detection of theft of energy, the officer authorised as per Clause 10 of this Schedule will issue a notice to the consumer asking him to show-cause within seven days from the date of receipt of the notice why extra levy should not be made for having committed theft of energy (vide Appendix VI). This is without prejudice to the other rights of the Board and to the criminal proceedings against the consumer.
1( If the consumer fails to send his explanation within the stipulated time or if the explanantion is not satisfactory, the extra levy will be assessed by the Officer authorised as per sub-clause 10 of this Schedule after conducting detailed enquiry by giving a reasonable opportunity to the consumer to represent his case with evidence if any and an order will be sent to the consumer asking him to pay the extra levy in equal monthly instalments with a maximum of -
(1. Modified by Tamil Nadu Electricity Board Permanent B.P.(FB) No.155, dated 2nd August, 1997)
(a) Five instalments for amount upto Rs.1,00,000/-;
(b) Ten instalments for amount above Rs.1,00,000/- and upto Rs.10,00,000/-
(c) Fifteen instalments for amount exceeding Rs.10,00,000/-.
The first instalment will be paid within 15 days from the date of receipt of the Assessment Notice by the consumer (vide Appendix VII). Failure to pay any of the instalments within the due date will result in disconnection of supply to the service connection without any further notice.) Extra levy for theft of energy shall be payable in addition to any other charges payable by the consumer in respect of the service connection at the rates notified in the Tariff Notification, Terms and Conditions of Supply of Electricity and 'Restriction and Control' Orders.
1(8.06 Theft of energy in temporary supply:
(1 Added by Tamil Nadu Electricity Board Permanent B.P.(FB) No.200, dated 20th August, 1996.) The extra levy for theft of energy in temporary supply may be made for a period of twelve months or from the date of service connection the date of detection of theft whichever is less, at the rate of three times the tariff rate applicable for temporary supply. The levy thus arrived at may be rounded off to the next higher rupee.
The quantity of units for calculating the extra levy may be worked out by means of the following formula:-
Units consumed - Connected load in kW found at the time of inspection divided by diversity factor x load factor x No. of hour per day x duration in days The diversity factor, load factor and the number of hours per day may be adopted as given below:
(a) Diversity factor - 1.1
(b)Load factor - 90 per cent
(c) No. of hours per day - 12).
24. In this connection, it is to be more relevantly pointed out by this court that in Criminal R.C.No.10 of 2003 (filed by the TNEB), represented by its Assistant Executive Engineer, O & M,Bagalur, Dharmapuri District V. S. Anandan and two others, on 30.01.2004, this Court in paragraphs 4 to 6 had observed and held as follows:
4. The main grounds under which the learned Magistrate had acquitted is that in the complaint P.W.1, who is not less than the Assistant Executive Engineer of the Electricity Department does not say that the seal was tampered with. Therefore, in such circumstances, when the seal was intact there could not have been any main screw tampered with the disc inside the meter.
5. The further reasoning of the learned Magistrate is that though in evidence subsequently, the witnesses have stated that the seal has been tampered with, nevertheless the seal was not sent to the Forensic Department to say whether it was tampered or not. Further according to the learned Magistrate, what is more surprising is that there is no check measurement adopted by the officials of the Electrical Department, in the sense that the Department people had not produced satisfactory evidence to show that the so extracted energy by way of theft is computed, while the electrical lines were in activation. According to the learned Magistrate, it is only the mere oral evidence to the effect that the running has been adduced. In the absence of any positive evidence to the effect that the check meter had been placed in the existing position and that there was difference in the recording of energy between the existing meter and the check meter, the accused / respondents cannot be positively be held guilty of the offences.
6. Added to the above, on going through the judgment and the evidence on record, I am of the view that the learned Magistrate has discussed the evidence in detail and has come to a correct conclusion. Further, in a case of revision against acquittal filed by a private party, the Apex Court in the decision made in Thankappan Nadar and others Vs. Gopala Krishnan and another reported in 2002(5) Supreme 552, stated that re-appreciation of evidence was not permissible in revisional jurisdiction and whenever there was evidence which has been overlooked, or procedural illegality or manifest error in law, the High Court should not interfere. Similar view has been taken in Bindeshwari Prasad Singh Vs. State of Bihar and another, reported in 2002 (5) Supreme 332, and also in Akalu Ahir and others Vs. Ramdeo Ram reported in 197 4 MLJ Criminal 168. In the present case, I do not see any such infirmities and consequently, I have no hesitation to uphold the order of the court below.
In the result, the revision is dismissed.
25. At this stage, it cannot be forgotten that the said Criminal Revision Case was filed against the acquittal of the Respondents 1 & 2 of offences under Section 39(1) and 44 (1) (C) of the Indian Electricity Act by the Learned Judicial Magistrate No. 1, Hosur.
26. It cannot be gainsaid that in W.P.M.P.No.43963 of 2003 in W.P.No.36213 of 2003, on 05.03.2004, this Court had passed the following order;
Heard both sides. Considering the facts and circumstance of the case, interim direction is granted as prayed for subject to the condition that the petitioner pays Rs.2,00,000/- to the respondents with a period of four weeks from today. On receipt of the said sum, the respondents are directed to restore the electricity service connection to the petitioner's poultry farm. The petitioner is further directed to pay another sum of Rs.1,00,000/- to the respondents within four weeks thereafter. In case, if the second instalment is not paid by the petitioner as directed it is open to the respondents to disconnect the electricity supply. As against the order dated 05.03.2004, in W.P.M.P.No.43963 of 2003 in W.P.No.36213 of 2003, the petitioner filed W.A.No.2554 of 2004 before this Court, on 28.10.2004, this Court allowed the writ appeal by making certain observations.
27. It comes to be known that on 12.11.2009, this Court dismissed W.P.No.21071 of 2000 (filed by the Petitioner) for non-prosecution. Also, in W.P.19591 of 2002 (filed by the Petitioner) before this Court on 05.01.2012, this Court while dismissing the writ petition, imposed a penalty of Rs.1000/- as costs payable to the High Court Legal Aid Services Authority.
28. A mere perusal of the contents of the detailed representation dated 07.05.2012 submitted by the Petitioner addressed to the Assistant Executive Engineer, O & M, Bagalur TNEB indicates that the criminal case filed against the petitioner for theft of energy was dismissed by two courts and further, he filed a case before this Court seeking electricity connection which was ordered to be given and only based on the said order, the Petitioner's Farm was given the electricity supply etc., thereafter, the impugned letter No.AEE/O&M/Bagalur/F.Court Cases/D.No.067/12 dated 01.08.2012 was issued by the Second Respondent addressed to the Petitioner requiring him to pay the penalty amount of Rs.12,38,165/- towards the theft of energy detected by the AEE/APTS/Dharmapur in the SC.No.511, Tariff-III B, Athimugam Distribution on 09.08.2000 etc.,
29. The Learned Counsel for the Respondents 1 & 2 brings it to the notice of this Court that in letter dated 11.09.2000 addressed to the petitioner, it was stated as follows:
On 09.09.2000 at 6.00 hrs the SC.No.511/III B, Athimugam distribution in Berigai was inspected by the Assistant Executive Engineer/ APTS/ Dharmapuri in the presence of Thiru.Siddhappa, S/o. Sakkalarappa, the enjoyer of the service connection. During the inspection, it was found that there was a theft as detailed in the show cause notice dated 10.08.2000.
The show cause notice was issued by the Asst. Exe. Engineer / O&M/ Bagalur/Hosur vide letter under reference cited above and called upon to explain as to why the Board should not recover the loss by imposing against you the extra levy in accordance with the terms and conditions of suppy of electricity.
During the inspection it is found that there was a theft of energy by byepassing the two phases of three phase meter there by avoiding the registering of consumption in two phases in the SC.No.511/III B. Hence the extra levy payable by you for the energy stolen is worked out under clause 8.02 of the schedule as Rs.12,38,165/- (Rupees twelve lakhs thirty eight thousand and one hundred and sixty five only) etc., and submits that now in the impugned order, the Petitioner was requested to pay the penalty amount of Rs.12,38,165/- as made mention of in the letter dated 11.09.2000 and therefore, the said impugned order is legally tenable one in the eye of law.
30. It is brought to the notice of this Court on behalf of the Petitioner that a miscellaneous petition praying to condone the delay in restoring W.P.No.21071 of 2000 to file is pending before this Court as on date. It is to be noted that the Petitioner filed W.P.No.21071 of 2000 under Article 226 of the Constitution of India for the issuance of writ of certiorari to call for the records relating to the proceedings of the Executive Engineer (O & M), TNEB Hosur, Dharmapuri District made in letter No.AE/IER/HSR/F.Doc/D.50-1/2000, dated 10.11.2000, and quash the same. Till date, the W.P.No.21071 of 2000 is not restored to file, in view of the pendency of condonation of delay miscellaneous petition and the said fact is admitted by both parties.
31. It is to be borne in mind that for attracting sub-section (1) of Section 300 of Cr.P.C the principle is that there must have been a previous trial of the offence by a Court having jurisdiction resulting in acquittal even it was wrong one. Also, it must be established that the offences were substantially the same and arose out of the same facts. In fact, Section 300 (1) of Cr.P.C does not apply where there was only one trial (no subsequent trial) for several offences, of some of which the accused was acquitted while being convicted of one case. The bar to the punishment to offender twice over for the same offence would arise only where the ingredients of both the offences are the same. In law, compromise of compoundable offence under Section 320 (8) of Cr.P.C automatically results in an acquittal and the accused cannot be tried again for the same offence. The whole basis of Section 300 (1) of Cr.P.C is that the first trial should be before the competent Court to try the case and to record a verdict of conviction or acquittal.
32. It is to be pointed out that Section 18 of the Tamil Nadu Electricity Supply Code, 2004, speaks of Consumer grievance Redressal and in fact, all grievances of the consumers, relating to the provisions under regulations (3) to (17) of Supply Code shall be referred by the consumer to the respective Consumer Grievance Redressal Forum constituted under the Act. (vide Commission's Notification No.TNERC/SC/7-4 dated 25.5.2007 (w.e.f 13.06.2007)). Further, Section 19 of the Electricity Supply Code says that Section 126 of the Act (Tamil Nadu Electricity Act, 2003) deals with the provisions for investigation and enforcement in cases of unauthorised use of electricity. Section 19-A of the Electricity Supply Code, 2004 refers to 'Procedure for disconnection of supply of electricity and removal of the unauthorised usage of electricity'. Section 22 of the Supply Code deals with ' Restoration of supply of electricity'. Section 23(A) of the Tamil Nadu Electricity Supply Code, 2004 deals with 'Tampering of meters and theft of electricity'. That apart, Section 23 (AA) of the Electricity Supply Code, speaks of 'The procedure for assessment of the electricity charges, disconnection of supply of electricity and removing the meter, electric line, electric plant and other apparatus in case of theft of electricity as detailed in Section 135 of the Act.
33. It may not be out of place for this Court make a relevant mention that Power of the Electricity Board is such that it has power to modify, alter or delete any terms and conditions of the supply and no notice is required as per decision Madura Coats Ltd, Madurai V. State of Tamil Nadu, reported in 2005 (5) CTC 133. At this stage, this Court aptly recalls and recollects the decision Chairman, TNEB, Madras V. Govindasamy Naidu, 2004 (4) MLJ 89 (Mad), wherein it is held that mere acquittal from the case for alleged theft of electricity and property of the Electricity Board will not absolve the consumer from the liability of compensating the loss sustained by the Board. Moreover, an illegal extraction of energy should be proved by acceptable means as per decision Subramaniam V. State represented by Sub Inspector of Police, Erode Town, 1992 MLJ (Crl) 409 (Mad). Also that, in the decision Divisional Engineer (West), TNEB V. J.Rajendra Prasad, 2007 (3) MLJ 282 (Mad), it is held as follows:
Under the Terms and Conditions of Supply of Electricity, Electricity Board has the responsibility to pass initial assessment of notice and then, show cause notice and final order should be passed only after conducting enquiry after giving opportunity to the customer, otherwise, it would result in violation of principles of natural justice and is not enforceable in law.
34. At this juncture, this Court, to prevent an aberration of justice, cites the following decisions;
(i) In the decision S. Senthil Kumar and Another V. Executive Engineer (Distribution), Tamil Nadu Electricity Board, Coimbatore District and Another, (2008) 4 MLJ 546 and at special page 547, it is held as follows;
When Section 126 of the Electricity Act, 2003 relates to the unauthorized use of electricity not amounting to theft and Section 135 of the Act relates to theft of electricity, it is not acceptable that even before the criminal liability of theft is concluded as per Section 135 of the Act, any final assessment can be made in furtherance of the provisional assessment order without giving notice to the consumer and giving opportunity to explain.
(ii) In the decision Tamil Nadu Electricity Board, rep.by its Superintending Engineer, Coimbatore Electricity System, Coimbatore and Others V. R. Raja,(2007) 5 MLJ 1297 and at special page 1298, it is observed and held as under;
The Electricity Board has the responsibility to properly conduct inspection, inform the consumer of electricity about the inspection and give the consumer opportunity in compliance with the principles of natural justice. Not having done so the Electricity Board's order to disconnect supply of electricity of plaintiff was unsustainable.
35. Coming to the aspect of the principle of 'Res Judicata', it is to be noted that if an issue is not raised and not decided, then, there is no 'Res Judicata' in the considered opinion of this Court. Unless, a finding attains finality, it cannot operate as 'Res Judicata'. 'Res Judicata' is a mixed question of fact and law. Indeed, a stray sentence in a judgment about the right of parties would not attract of 'Res Judicata'.
36. As far as the present case is concerned, on going through the impugned letter No.AEE/O&M/Bagalur/F Court cases D.No.067/12 dated 01.08.2012, passed by the 2nd Respondent, it is quite evident that the Petitioner was requested to pay the penalty amount of Rs.12,38,165/- towards the theft of energy detected by the AEE/APTS/Dharmapuri in the SC.No.511, Tariff III B, Athimugam Distribution on 9.8.2000, without any further delay, within 7 days from the date of receipt of this notice etc., and further intimated that the above said service would be disconnected without any further intimation. It was represented on behalf of the Respondents 1 & 2 that since W.P.No.21071 of 2000 was dismissed for non-prosecution on 12.11.2009 and another W.P.No.19591 of 2002 was dismissed by this Court on 05.01.2012 and therefore, the impugned order dated 01.08.2012 was passed by the 2nd Respondent and the supply was disconnected on 17.08.2012 at 5.00 p.m. At this stage, this Court, very pertinently points out that the Petitioner made a detailed representation dated 07.05.2012 addressed to the 2nd Respondent by referring to the earlier W.P.No.21071 of 2000 and W.P.No.19591 of 2002 etc., and finally stated that if any appeal was filed as against the order directing the electricity board to supply electricity to the Petitioner's Farm, copy of the said judgment may be furnished and that apart, when 7 = years had passed by, if any threatening was made unilaterally that electricity supply would be disconnected or if the supply was disconnected, then, a contempt case and also a suit for damages would be filed. Significantly, the Respondents 1 & 2 disconnected the electricity supply of the Petitioner's Farm on 17.08.2012 at 5.00 p.m. after the dismissal of two writ petitions as stated supra.
37. It cannot be ignored that the impugned order dated 01.08.2012 passed by the 2nd Respondent that there was no mention of the necessary details of the representation of the Petitioner dated 07.05.2012 and as a matter of fact, the 2nd Respondent had not adverted to atleast the pivotal contents of the said representation of the petitioner dated 07.05.2012 in a qualitative and quantitative manner and also, the impugned order does not discuss about the contents of the representation made by the Petitioner. Ordinarily, while passing the impugned order in a given case, an administrative authority is to deal with the points dealt with by the Petitioner in his representation and also that, the discussion of the said contents /contentions ought to be an imperative one in the considered opinion of this Court. But, the impugned order straight away at the out set mentions that on scrutinising the reply received from the Petitioner dated 07.05.2012 with the standing counsel of the Electricity Board and based on the judgment order of Writ Petitions viz., W.P.Nos.21071 of 2000 and 19591 of 2002, the Petitioner was requested to pay the penalty amount of Rs.12,38,165/- towards the theft of energy etc.,
38. To put it succinctly, in the impugned order dated 01.08.2012 passed by the 2nd Respondent that there is no outline of process of reasoning and therefore, the said order is a non speaking order and also not a reasoned one on merits as opined by this Court. No wonder, a reasoned order passed on merits with full discussions would have an appearance of justice. An unreasoned order may be just from the point of you of the authority who passed the same. But to the affected/aggrieved the same is an unjust order and also an illegal one in the eye of law.
39. In short, the impugned order dated 01.08.2012 suffers from material irregularities and also patent illegalities in the eye of law. A glance of the impugned letter dated 01.08.2012 of the 2nd Respondent addressed to the Petitioner shows that in the reference column, there was no mention about the judgment dated 28.10.2004 in W.A.No.2554 of 2004 passed by the Division Bench of this Court. Also, in the aforesaid impugned letter / order dated 01.08.2012 of the 2nd Respondent no reasons have been spelt out on what basis, the 'Levy of Penalty' is demanded from the Petitioner. Therefore, this Court, without going into merits of the matter by delving deep, to prevent an aberration of justice and to promote substantial cause of justice, interferes with the impugned order dated 01.08.2012 passed by the 2nd Respondent and sets aside the same. Consequently, the writ petition succeeds.
40. In the result, the writ petition is allowed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petitions are closed. The order passed by the 2nd Respondent is hereby set aside in the reason assigned in the writ petition. Further, this Court directs the 2nd Respondent to consider the representation of the petitioner dated 07.05.2012 afresh in a fair, just, threadbare and dispassionate manner in the light of orders passed by this Court by taking into account of the fact a miscellaneous petition praying permission of this Court to condone the delay in restoring the writ petition No.21071 of 2000 to file is pending as on date on the file of this Court and also, to pass a reasoned speaking order on merits within a period of eight weeks from the date of receipt of copy of this order uninfluenced with any of the observations made by this Court in this Writ petition (of course after providing due opportunities to the both parties to preclude their version of their case)
41. Before parting with the case, this Court grants liberty to the respective parties to raise all factual and legal pleas and also, to make use of the decisions /case laws which they rely upon (including issue whether the 2nd Respondent is entitled to demand penalty amount a sum of Rs.12,38,165/- towards theft of energy from the Petitioner) before the 2nd Respondent and the 2nd Respondent is to look into the entire gamut of the subject matter in issue in the manner known to law and in accordance with law and to pass appropriate orders within the time determined by this Court.
21.03.2014
Index : Yes/No
Internet: Yes/No
sms
To
1. The Executive Engineer,
Erection and Maintenance,
Tamil Nadu Electricity Board,
Hosur, Krishnagiri District.
2. Assistant Executive Engineer,
Tamil Nadu Electricity Board,
Pahalur Division, Krishnagiri District.
M.VENUGOPAL.J,
sms
Pre-delivery order in
W.P.No.25078 of 2012
and
M.P.No.1 & 2 of 2012
21.03.2014