Madras High Court
M/S.Sri Velmurugan Industries vs In W.P.No.36067 Of 2007 on 3 August, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.36067 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2022
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
W.P.No.36067 of 2007
W.P.No.21210 of 2004
W.P.M.P.No.25606 of 2004
and W.V.M.P.No.2249 of 2005
M/s.Sri Velmurugan Industries,
Madurai Road, Melur Village,
Thirumayam, Pudukottai District,
Represented by its Proprietrix Mrs.K.Muthayee ...Petitioner
in both W.P's
Vs.
In W.P.No.36067 of 2007:-
1.The Government of Tamil Nadu
Represented by Secretary to Government
Energy Department
Fort St.George, Chennai – 600 009.
2.The Tamil Nadu Electricity Board
Regulatory Commission
No.18, Third Main Road,
Seethammal Colony,
Alwarpet, Chennai - 18
3.The Tamil Nadu Electricty Board,
Represented by its Chairman
No.800, Anna Salai, Chennai – 600 002.
4.The Superintending Engineer,
Tamil Nadu Electricity Board,
Pudukottai Electricity Distribution Circle,
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W.P.No.36067 of 2007
Pudukottai.
5.The Assistant Executive Engineer,
Operations and Maintenance,
Tamil Nadu Electricity Board,
Thirumayam.
6.The Thirumayam Rural Electric Co-operative
Society Limited, Thirumayam,
Represented by its Special Officer ...Respondents
In W.P.No.21210 of 2004:-
1.The Tamil Nadu Electricity Board,
Represented by its Chairman,
No.800, Anna Salai, Chennai – 600 002.
2.The Executive Engineer,
Vigilance Department,
Tamil Nadu Electricity Board,
Tiruchirappalli.
3.The Executive Engineer,
Tamil Nadu Electricity Board (MRT),
Pudukottai.
4.The Assistant Executive Engineer,
Operations and Maintenance,
Tamil Nadu Electricity Board,
Thirumayam.
5.The Sub Inspector of Police (Crimes),
Thirumayam.
6.The Thirumayam Rural Electric Co-operative
Society Limited, Thirumayam,
Represented by its Special Officer. ...Respondents
Prayer in W.P.No.36067 of 2007:- Writ Petition is filed under Article 226 of the
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W.P.No.36067 of 2007
Constitution of India to issue a Writ of Declaration declaring Regulations 1 (C),
Regulation No.14 and 16 of the Tamil Nadu Electricity Supply (Amendment) Code,
2007 and the proceedings of the fourth respondent herein in letter
NDT.No.SE/PEDC/PDKT/AEE/GL/AE/F.VELMURUGAN/D.969/07 dated
20.11.2007 purported to have been issued there under as arbitrary, illegal, ultravires
and unconstitutional.
Prayer in W.P.No.21210 of 2004:- Writ Petition is filed under Article 226 of the
Constitution of India to issue a Writ of Declaration declaring that the
inspection/search which was conducted by the respondents herein and their team at 1
A.M. on the night of 17.07.2004/18.07.2004 in respect of the petitioner's Electricity
Service Connection No.HT/106 (old No.5) at M/s.Velmurugan Industries, Madurai
Road, Melur Village, Thirumayam, Pudukottai by imposing any demand on the
petitioner pursuant thereto or taking any steps for recovery of the same as arbitrary,
illegal and ab initio and direct the respondents herein not to initiate any proceedings
pursuant thereto.
In W.P.No.36067 of 2007:-
For Petitioner : M/s.A.L.Ganthimathi
For Respondents : Mr.T.K.Saravanan
Government Advocate for R1
M.Abul kalam
standing counsel for R2 to R5
In W.P.No.21210 of 2004:-
For Petitioner : M/s.A.L.Ganthimathi
For Respondents : Mr.M.Abul kalam
standing counsel for R1 to R4 & R6.
Mr.T.K.Saravanan
Government Advocate for R5
COMMON ORDER
This Court heard the learned counsel for the petitioner. A larger issue is https://www.mhc.tn.gov.in/judis 3/12 W.P.No.36067 of 2007 involved in both these Writ Petitions. However, this Court finds that the impugned provisional assessment order dated 20.11.2007, issued by the Superintending Engineer is not sustainable in law and therefore this Court will assign the reasons for coming to such a conclusion without going into the larger issues that have been raised in these Writ Petitions. By doing so, the petitioner will get the relief and the larger issues can be reserved for some other occasion in future.
2.W.P.No.21210 of 2004 has been filed to declare the inspection/search conducted by the respondents and the consequential steps taken for recovery of the demand as arbitrary and void ab-initio.
3.W.P.No.36067 of 2007 has been filed challenging Regulation Nos.14 and 16 of the Tamil Nadu Electricity Supply (Amendment) Code, 2007 and the proceedings of the Superintending Engineer dated 20.11.2007.
4.The brief facts of the case is that the petitioner is a small scale industry who have been provided with electricity service connection by the sixth respondent/Society. The further case of the petitioner is that they have been paying the consumption charges as and when the bills are raised by the Electricity Board based on the meter readings. The sixth respondent/Society was the supplier of the energy to the petitioner and the petitioner had only entered into agreement with the https://www.mhc.tn.gov.in/judis 4/12 W.P.No.36067 of 2007 sixth respondent/Society.
5.The Government order was issued to the effect that the Societies which were distributing the energy will be wound up and it will be taken over by the Electricity Board. This Government order was challenged before this Court and ultimately the power of the Electricity Board was upheld. In so far as the facts of the present case is concerned, it was the Society which was involved in distribution of the electrical energy at the relevant point of time. That is the reason why the petitioner has questioned the search that was conducted by the Electricity Board in the premises in W.P.No.21210 of 2004.
6.The Electricity Board conducted an inspection in the premises of the petitioner and allegedly detected theft of electricity and loss caused to the Electricity Board to the tune of Rs.95,53,340/-. A complaint was given to the Police and an FIR came to be registered in Crime No.136 of 2004 on 18.07.2004 for offence under Section 379 I.P.C read with Section 135 (1) (b) and 138 (1) (d) of the Indian Electricity Act, 2003. This FIR came to be challenged before this Court in Crl.O.P(MD).No.1371 of 2004 and the FIR was quashed by an order dated 14.09.2004. By virtue of this order, the criminal proceedings that were initiated by the Electricity Board came to an end and it is clarified that no steps were taken subsequently to file any criminal complaint against the petitioner. https://www.mhc.tn.gov.in/judis 5/12 W.P.No.36067 of 2007
7.It is stated that the Superintending Engineer issued a show cause notice dated 02.09.2004 alleging that there was theft of energy and loss was caused to the Electricity Board to the tune of Rs.3,50,80,842/-. The petitioner was directed to show cause as to why the Board should not recover this loss. This show cause notice dated 02.09.2004 became a subject matter of challenge in W.P.(MD).No.1431 of 2004.The Writ Petition was taken up for final hearing and the following order was passed on 15.12.2006.
4.In identical circumstances, W.P.No.23188 of 2006 was filed before the Principal Bench, where the consumers of electricity were alleged to have committed theft of energy and they were called upon to make good the loss suffered by the Electricity Board on account of the theft of energy. It was contended in that Writ Petition that once the proceedings under Section 135 (1) (6) of the Electricity Act are initiated, the respondents cannot presume that the petitioners are guilty even before the criminal action is conclude.
5.Reliance was placed on the order passed by the Delhi High Court in W.P.(C)No.649 of 2004, which was followed by the principal Bench of this Court and order was passed on 09.10.2006 in W.P.No.23188 of 2006. This case is identical to that one and the come order is passed herein also.
6.In view of the above order, it is clear that the Legislature has recognized the difficulties in the working of the Act and has provided for the inclusion of measures for assessment of electricity charges https://www.mhc.tn.gov.in/judis 6/12 W.P.No.36067 of 2007 payable in case of theft of electricity. Therefore, the respondents ought not to have resorted to assessment of charges as per Section 126 when they gave initiated proceedings under Section 135 of the Act.
7.In these circumstances, the impugned order dated 02.09.2004 is quashed. It is open to the respondents to proceed in accordance with law once the provisions as contemplated under the Electricity (Removal of Difficulties) order, 2005 are included. Since the Electricity (Removal of Difficulties) order, 2005 seems to indicate that when proceedings under Section 135 is initiated, recourse cannot be had to assessment under Section 126, the Writ Petition will necessarily have to be allowed. However, the orders passed in this Writ Petition would not stand in the way of the respondents to take such action as is necessary and in accordance with law.
8.The Writ Petition is allowed.
8.Subsequent to the above order, the Tamil Nadu Electricity Supply (Amendment) Code, 2007, was brought into force from 13.06.2007. It was provided that all the Regulations were come into force from the date of publication in the Tamil Nadu Government Gazette (i.e) on 13.06.2007, except Regulations 14 and 16 which were brought into force with effect from 01.09.2004. Thereby, these two Regulations were given retrospective effect.
9.After the Supply Code came into effect, the Superintending Engineer issued https://www.mhc.tn.gov.in/judis 7/12 W.P.No.36067 of 2007 the impugned provisional assessment order dated 20.11.2007. Hence, the Regulations 14 and 16 of the Amended Code and the provisional assessment order has been put to challenge in W.P.No.36067 of 2007.
10.Heard M/s.A.L.Ganthimathi, the learned counsel for the petitioner in both W.P's, Mr.T.K.Saravanan, the learned Government Advocate for R1 in W.P.No.36067 of 2007 and for R5 in W.P.No.21210 of 2004 and Mr.M.Abul Kalam, the learned standing counsel TNEB in both W.P's.
11.This Court has already indicated that there is no requirement to go into the larger issue that has been raised in the Writ Petitions, since the impugned provisional assessment order is found to be illegal. On going through the impugned provisional assessment order, it is seen that the same has been issued under Section 135 and 138 of the Electricity Act, 2003. When a show cause notice was issued earlier by quoting the very same provisions under Section 135 (1) (b) and 138 (1) (d), this Court had interfered with the show cause notice mainly on the ground that such assessment orders cannot be passed without the criminal case coming to its logical end. If this Court is to presume that the present impugned order dated 20.11.2007 was actually issued under Section 126 of the Electricity Act, then the Regulations 14 and 16 that were brought into force through the Amended Code, 2007, will come into play. Even https://www.mhc.tn.gov.in/judis 8/12 W.P.No.36067 of 2007 as per the Amended Code, these Regulations will come into force only with effect from 01.09.2004. Whereas, the inspection report in this case was on 18.07.2004.
Hence, even if Regulations 14 and 16 has retrospective effect, it does not extend upto 18.07.2004 and it is restricted only from 01.09.2004. Therefore, even if it is presumed to have been issued by placing reliance upon Regulations 14 and 16, the same will not apply in the facts of the present case, since the inspection report is dated 18.07.2004. Hence, the provisional assessment order issued by the Superintending Engineer, dated 20.11.2007 is liable to be interfered on this ground and it must be held that the said order was passed beyond the power and jurisdiction of the Superintending Engineer.
12.In the present case, the Electricity Board did not take any interest in prosecuting the criminal case by filing a complaint even after the FIR was quashed by this Court vide order dated 14.09.2004. In view of the same, the very basis on which the provisional assessment order was made by the Superintending Engineer becomes unsustainable and the same is liable to be interfered by this Court.
13.In view of the above discussion, the impugned provisional assessment order dated 20.11.2007 issued by the Superintending Engineer is hereby quashed and both the Writ Petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed.
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1.The Government of Tamil Nadu Represented by Secretary to Government Energy Department Fort St.George, Chennai – 600 009.
2.The Tamil Nadu Electricity Board Regulatory Commission No.18, Third Main Road, Seethammal Colony, Alwarpet, Chennai - 18
3.The Tamil Nadu Electricty Board, Represented by its Chairman No.800, Anna Salai, Chennai – 600 002.
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4.The Superintendenting Engineer, Tamil Nadu Electricity Board, Pudukottai Electricity Distribution Circle, Pudukottai.
5.The Assistant Executive Engineer, Operations and Maintenance, Tamil Nadu Electricity Board, Thirumayam.
6.The Thirumayam Rural Electric Co-operative Society Limited, Thirumayam, Represented by its Special Officer
7.The Executive Engineer, Vigilance Department, Tamil Nadu Electricity Board, Tiruchirappalli.
8.The Executive Engineer, Tamil Nadu Electricity Board (MRT), Pudukottai.
9.The Sub Inspector of Police (Crimes), Thirumayam.
N.ANAND VENKATESH.J., ep https://www.mhc.tn.gov.in/judis 11/12 W.P.No.36067 of 2007 W.P.No.36067 of 2007 W.P.No.21210 of 2004 03.08.2022 https://www.mhc.tn.gov.in/judis 12/12