Madras High Court
Fiem Industries Ltd (Unit Iii) vs The Superintending Engineer on 25 November, 2013
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2013
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.25849 of 2013
Fiem Industries Ltd (Unit III)
rep. by its Deputy General Manager - HR & Admn.,
Mr.K.A.Manikandan ... Petitioner
Versus
1. The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Ltd.,
Krishnagiri Electricity Distribution Circle,
Dharmapuri.
2. The Superintending Engineer,
Krishnagiri Electricity Distribution Circle,
Tamil Nadu Generation and Distribution
Corporation Ltd.,
Dharmapuri.
3. The Executive Engineer,
Operations & Maintenance,
Tamil Nadu Generation and Distribution
Corporation Ltd.,
Hosur. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Mandamus, directing the respondents to initiate proceedings contemplated under the Electricity Act, 2003, pursuant to the proceedings of the 3rd respondent, dated 25.09.2012 and 26.09.2012.
For Petitioner .. Mr.Karthick,
for M/s.T.S.Gopalan
For Respondents .. Mr.S.K.Rameshwar
O R D E R
The petitioner-Factory is an Automobile Industry. It is the case of the petitioner that during 2012, the factory had an installed capacity of 1000 KVA by TANGEDCO. A new shed was put up for moulding unit and apart from that, a rest shed/training room was sought to be put up, for which, roofing was required, consisting of iron poles, which were welded at joints, over which, tin sheets were to be laid, so that, the workmen could rest in the covered area, adjoining to Shed No.2. Due to severe power shortage, the Industrial areas in Hosur were severely affected and they were allowed to use only 40% of the maximum demand. According to the petitioner, they could use 40% of the installed capacity. However, in order to augment supply of electricity and carry on the production activity, without any disruption, the petitioner had a captive generation. On account of addition of a Moulding Unit, the total usage of the power in the factory doubled from 1000 KVA to 2000 KVA. The petitioner had also purchased a new generation set, for which, cabling work was required. The new cabling was sought to be provided from the power house, by means of a metallic tray, which would support the cables.
2. While that be so, on 25.09.2012, at 2.30 P.M., the Executive Engineer, (Operation and Maintenance), Tamil Nadu Generation and Distribution Corporation Ltd., Hosur, 3rd respondent, along with the Assistant Executive Engineer (O & M), C & I, Tamil Nadu Generation and Distribution Corporation Ltd., and the Assistant Executive Engineer, Enforcement (Vigilance), Tamil Nadu Generation and Distribution Corporation Ltd., came to the petitioner-Factory and made a surprise inspection of the service connection HT SC No.303/1A. The petitioner and Mr.Gunasekaran, Electrical Incharge, were present at the time of surprise inspection. The 3rd respondent questioned about the additional building construction works and the source of electricity for such construction activities. The petitioner replied to them that they have got a captive generator, which was used for the construction. It was actually a minor construction to provide a roof covered with tin sheets, intended to be used as a rest shed/training room to provide the tray for additional cables from the power house, for which, they had outsourced tresses and captive power generator was only used. They have also submitted that necessary permission has been obtained from the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, for operating the captive generators,
3. The petitioner has further submitted that without considering their reply, the 3rd respondent has prepared an observation mahazar and demanded an acknowledgement of the same. Going through the said observation, the petitioner found that the contents were actually contrary to the actual physical situation, prevailing at the time of surprise inspection and moverover, the machines mentioned therein were not in use, at the time of inspection. However, the Executive Director of the petitioner-factory had acknowledged the same, under protest.
4. Thereafter, the 3rd respondent and his men, visited the factory premises, on the same day, during the night hours and handed over a demand notice for Rs.94,000/-, towards penalty, for unauthorised use of electricity for the new building under construction. The petitioner has protested against the illegal demand. Nevertheless, taking into consideration that there should not be any disruption in the manufacturing activity, the petitioner was constrained to make payment of Rs.94,000/-, by way of cash, under protest. Subsequently, at 11.00 P.M., on the same day, ie., on 25.09.2012, the Assistant Executive Engineer (O & M), C & I, Tamil Nadu Generation and Distribution Corporation Ltd., came to the factory premises and disconnected the electricity service connection, without any notice and thereafter, he has served the disconnection notice, stating that electricity service connection would be restored, only if the petitioner pays an additional amount of Rs.6,78,661/- towards additional charges. Since the petitioner was not able to pay the said amount immediately, during night hours, the petitioner issued a cheque. But, the 3rd respondent refused to accept the same and the entire factory work, had come to a standstill, on the night of 25.09.2012.
5. The petitioner has further submitted that on the next day, they paid the said amount of Rs.6,78,661/- along with the reconnection charges of Rs.3,000/-, under protest. In this regard, a detailed letter, dated 26.09.2012, was sent to the 3rd respondent, through registered post. A copy of the same was also handed over to the 3rd respondent, in person. Thereafter, the 3rd respondent issued a final assessment order, dated 26.09.2012, wherein, it was stated that as the petitioner had paid the additional charges of Rs.6,78,661/- and compounding charges of Rs.94,000/- and service connection had been reconnected on 26.09.2012. It is in these circumstances, the petitioner has preferred this writ petition for a Mandamus, directing the respondents to initiate proceedings contemplated under the Electricity Act, 2003, pursuant to the proceedings of the 3rd respondent, dated 25.09.2012 and 26.09.2012 respectively.
6. Reiterating the facts, stated supra and inviting the attention of this Court to the specific endorsement made by the Executive Director of the petitioner-factory, Mr.J.S.S.Rao, in the notice, under Section 152 of the Electricity Act, 2003, directing payment of compounding fee, for the alleged contravention of Section 135(1) (a) to (e) of the Electricity Act, 2003, Mr.Karthick, learned counsel for the petitioner submitted that payment of a sum of Rs.94,000/-, towards compounding fee, was under protest. He also took this Court to the notice, issued by the Assistant Executive Engineer (O & M), C & I, Tamil Nadu Generation and Distribution Corporation Ltd., dated 25.09.2012, directing the petitioner to pay a sum of Rs.6,78,661/- towards additional charges and in default, there was a threat of disconnection. He also took this Court through the contents of the order, dated 26.09.2012, by which, a final assessment has been made to the tune of Rs.6,78,661/-, as hereunder:
Additional Charges (46,368 x 2 x 100 x 93) = Rs.8,62,444.80 Tax (5%) = Rs. 21,561.12 (-) Amount already remitted = Rs.2,05,345.00
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Total = Rs.6,78,660.00
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Or say Rs.6,78,661/-
He further submitted that when unauthorised use of electricity, falls within the definition of theft, there is no appeal remedy against the final assessment and hence, this Writ Petition.
7. Material on record discloses that upon payment of the abovesaid amount, the Executive Director of the petitioner-Factory has immediately sent a letter, dated 26.09.2013, to the 3rd respondent, with a copy marked to the Chief Engineer, Vellore, Superintending Engineer, TNEB, Dharmapuri, as to how, the energy was used. In the said letter, the petitioner has also contended that he had not misused or committed theft of energy. Reference was made to Regulation 19-A(6) of the Supply Code, which states that, "in case of default in payment of the assessed amount, a 15 days' notice, has to be given in writing, before disconnecting supply of electricity." and it was contended that the assessing officer, ought to have given sufficient time before disconnection.
8. In the abovesaid letter, the petitioner has also contended that they have not used the equipments, as described in the observation report and APTS team had also witnessed the non-usage of the said machines. The petitioner has also denied violation of Section 135(1)(e) of the Tamil Nadu Electricity Act, 2003, as claimed in the observation Mahazar, dated 25.09.2012. Learned counsel for the petitioner also submitted that the power was only used from capacitive generators, for the purposes, stated supra. In the abovesaid circumstances, learned counsel for the petitioner has requested the said authority to review the whole episode, by considering the Companies track record in adhering to TNEB regulations and recall all the charges and adjust the money, paid by them, under protest.
9. Material on record further discloses that inasmuch as the compounding fee has been paid under protest on 25.09.2012 and thereafter, under threat of disconnection, when the entire amount has been paid, the petitioner has filed an appeal before the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, enclosing the copy of the following documents,
(i)Observation Mahazar
(ii)Demand notice for Rs.94,000/-
(iii)Disconnection notice
(iv)Additional charges list
(v)Final assessment order
(vi)Letter, dated 26.09.2012 sent by the appellant
(vii)Letter, dated 10.10.2012 sent by the appellant
(viii)Outsource contract for the tin tresses
(ix)Captive Generator unit regarding details for 25.09.2012
(x)Photographs (already copies attached to the letter, dated 26.09.2012)
(xi)Authorisation Letter Original
(xii)Form 7 Affidavit - Original
10. But the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, vide Lr.No.SEK/Gen/AE-2/F.APTS Theft HT.SC.303/D.215/12, dated 20.12.2012, has informed the petitioner that in respect of HT service connection, the Executive Engineer, O & M concerned, is the authorised person, to issue the provisional assessment order, conduct enquiry and pass a final assessment order and for the cases, booked under Section 135 of the Electricity Act, 2003, there is no provision of further appeal. In these circumstances, the writ petition has been entertained and heard.
11. Part-XII of the Electricity Act, 2003, deals with Investigation and Enforcement. Sections 126 deals with assessment and the said Section is extracted hereunder:
Section 126: (Assessment):--- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) assessing officer means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) unauthorised use of electricity means the usage of electricity:
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized.
12. Section 127 speaks about filing of an appeal to the appellate authority, in the event of assessment made under Section 126 of the Act and the said Section reads as follows:
Section 127. Appeal to Appellate Authority:--- (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3[half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.
13. Part XIV deals with offences and penalties and Section 135 speaks about theft of electricity, which reads as follows:
Section 135. (Theft of Electricity):--- (1) Whoever, dishonestly:-- (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may --
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
14. Section 151 speaks about the cognizance of offences and it reads as follows:
Section 151. (Cognizance of offences): No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.
15. Section 151-A deals with power of the Police to investigate and it is stated that for the purposes of investigation of an offence punishable under the Electricity Act, the Police Officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973. Section 151-B states that offences under Sections 135 to 140 or Section 150 are cognizable and non-bailable, notwithstanding anything contained in the Code of Criminal Procedure, 1973.
16. Compounding of offences is provided for, under Section 152 and the same reads as follows:
Section 152. (Compounding of offences): --- (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, 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:
Table Nature Rate at which the sum of money for compounding to the collected per Kilowat (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. Industrial service Twenty thousand rupees
2. Commercial service Ten thousand rupees
3. Agricultural service Two thousand rupees
4. Other service 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 empowered in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.
(4)The Compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer.
17. Part XV deals with Special Courts and Section 153 deals with the Constitution of the same. Section 154 deals with the procedure and power of the Special Court and the said Section is extracted hereunder:
Section 154. (Procedure and power of Special Court):--- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act:
Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court:
Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:
Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.
(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.
(5) The Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.
Explanation. - For the purposes of this section, civil liability means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 139 and Section 150.
18. In a recent judgment in Southern Electricity Supply Co., of Orissa Ltd., v. Sri Seetaram Rice Mill reported in 2012(2) SCC 108, the Supreme Court, after considering the preamble, statement of objects, legislative history and salient features of the Electricity Act, 2003, explained the difference between Section 126 and 135 of the Electricity Act. The Supreme Court has also explained the objective difference between the abovesaid Sections, the ambit and scope of Section 126, with reference to the construction of words, unauthorised use and means, the effect and impact of change in applicability of tariff upon the power of assessment, in accordance with the provisions of Electricity Act, 2003, and the relevant Regulations, pertaining to the facts and circumstances of the reported case.
19. The facts in nutshell in Sri Seetaram Rice Mill's case (cited supra), are as follows:-
"The Respondent-Industry was categorised as Medium Industry Unit, which deals with the demand of 99 KVA and above but below 110 KVA. On inspection of the business premises of the respondent, the Executive Engineer has noticed as follows: "Dump of the Meter taken. Calibration of meter done and error found within limit. If any abnormality detected in Dump, it will be intimated later on." No further intimation was given to the respondent-Industry, as to the finding of defects, if any, in dump. While issuing the provisional assessment order, intimation was given that there was unauthorized use of electricity, falling squarely within the ambit of provisions of Section 126 of the 2003 Act. The provisional assessment order was made under Section 126(1) of the 2003 Act, for unauthorized use of electricity and the Consumer was required to file objections, if any, and to also pay the amount. The relevant part of the said provisional assessment order reads as under:
"And Whereas you are entitled to file objections against the aforesaid - provisional assessment order under Section 126(3) of Electricity Act, 2003, within 30 days from receipt hereof and further entitled to appear before the undersigned for an opportunity of being heard on 25.08.2009 during working hours from 11.00 AM to 5.00 PM. And Whereas you are further entitled u/s 126(4) to deposit the aforesaid amount within 7 days and upon such deposit being made within 7 days, you shall not be subject to any further liability or any action by any authority whatsoever.
And Whereas if you fail to file the objection within 30 days from receipt hereof, the undersigned shall presume that you have no objection to the provisional assessment and the undersigned shall proceed to pass final order u/s 126(3) on assessment of electricity charges payable by you. And Whereas, if you fail to appear before the undersigned at the aforesaid date and time after filing objections, if any, the undersigned shall proceed to pass the final order under section 126(3), based on the objection filed by you and evidence available on record."
The consumer did not file its objections/reply, but challenged the said provisional assessment order and the intimation of unauthorized use, by way of filing a writ petition. The said writ petition was opposed by the Electricity Department. The High Court, while accepting the contention of the respondent-Industry, held that overdrawal of Maximum Demand would not fall under the scope of `unauthorized use of electricity', as defined under the 2003 Act and the appellants-Department had no jurisdiction to issue the intimation in question and pass the assessment order, in terms of Section 126 of the 2003 Act. Testing the same, the Southern Electricity Supply Co., of Orissa Ltd., filed an appeal.
20. In the above reported case, the Supreme Court has framed following points for consideration, "(a) Wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the -provisions of Section 126 of the 2003 Act be attracted on its true scope and interpretation?
(b) Whether the High Court, in the facts and circumstances of the case, was justified in interfering with the provisional order of assessment/show cause notice dated 25th July, 2009, in exercise of its jurisdiction under Article 226 of the Constitution of India?
(c) Was the writ petition before the High Court under Article 226 of the Constitution of India not maintainable because of a statutory alternative remedy being available under Section 127 of the 2003 Act?"
(emphasis supplied)
21. The discussion of the Hon'ble Supreme Court, on merits, on Question No.1, is reproduced hereunder:
"13. On the simple analysis of the facts as pleaded by the parties, it is contended on behalf of the respondent that the provisions of Section 126 of the 2003 Act are not attracted and no liability could be imposed upon them by the authorities in exercise of their power under that provision. Even if the case advanced by the appellants against the respondent without prejudice and for the sake of argument is admitted, even then, at best, the demand could be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations, 2004 (for short, `the Regulations'). But recourse to the provisions of Section 126 was impermissible in law. The contention is that the case of a consumer consuming the electricity in excess of maximum and the installed load does not fall within the mischief covered under Section 126 of the 2003 Act. To put it plainly, the argument is that the appellants lack inherent authority to raise such demand with reference to the present case on facts and law both.
14. On the contra, submission on behalf of the appellants is that the case of excessive consumption of power beyond the sanctioned load would be a case falling within the ambit of Section 126 of the 2003 Act. Section 126 of the 2003 Act is incapable of an interpretation which would render the said provision otiose in cases which do not specifically fall under -Section 135 of the 2003 Act.
15. In order to answer these contentions more precisely, we find it appropriate to examine the question framed above, under the following sub-headings:
(a) Interpretation;
(b) Distinction between Sections 126 and 135 of the 2003 Act;
(c) The ambit and scope of Section 126 with reference to the construction of the words `unauthorised use' and `means'; and
(d) Effect and impact of change in applicability of tariff upon the power of assessment in accordance with the provisions of the 2003 Act and the relevant Regulations in the facts of the case.
16. First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed. From the objects and reasons stated by us in the beginning of this judgment, it is clear that `revenue focus' was one of the principal considerations that weighed with the Legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms.
17. This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime. In our considered view, the two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled cannon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter. A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results.
18. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even in relation to penal statutes, decide that any narrow and pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i.e., to put an implied restriction on such unauthorized consumption of electricity."
22. After referring to many decisions, as to how, a statute should be interpreted, the Supreme Court, at Paragraphs 22 and 23, held as follows:
"22. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the -substantive provisions of the Act itself. The Standing Committee on Energy, 2001, in its discussion said, `the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements'. The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the legislative intent.
23. By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that the provisions of Section 126 of the 2003 Act should be read with other provisions, the regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation."
23. Then, while considering the distinction between 126 and 135 of 2003 Act, at Paragraphs 24 to 30, the Supreme Court, held as follows:
"24. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act.
25. Section 135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and title of the Section is `theft of electricity'. The Section opens with the words `whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Sub-section (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.
26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression `unauthorized use of electricity'. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an `authorized use of electricity'. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.
27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of Sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.
28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea.
29. Thus, it would be clear that the expression `unauthorized use of electricity' under Section 126 of the 2003 Act deals with cases of unauthorized use, even in absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection bypassing the installed meter.
30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act."
24. While considering the acts enumerated under Section 135 of the Electricity Act, 2003, with reference to the word "dishonestly" occurring at the commencement of Section 135 of 2003 Act and the dictionary meaning of the word "dishonest", at Paragraph 35, the Supreme Court, held as follows:
"22. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under Sub-sections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act."
25. As regards the ambit and scope of Section 126, with reference to the words, "unauthorised use" and "means", at Paragraphs 36 to 41, the Supreme Court, held as follows:
"27. Wherever the assessing officer arrives at the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. The complete procedure is provided under these sections. Right from the initiation of the proceedings till preferring of an appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.
28. We have already indicated that the provisions of Section 126 do not attract the principles of Criminal Jurisprudence including mens rea. These provisions primarily relate to unauthorized use of electricity and the charges which would be payable in terms thereof. To determine the controversy in the present case, it will be essential to examine the implication of the expression `unauthorised use of electricity' as contained in Explanation (b) of Section 126 of the 2003 Act.
29. In order to explain these expressions, it will be necessary for us to refer to certain other provisions and the Regulations as well. These expressions have to be understood and given meaning with reference to their background and are incapable of being fairly understood, if examined in isolation. It is always appropriate to examine the words of a statute in their correct perspective and with reference to relevant statutory provisions. The expression `unauthorized use of electricity' on its plain reading means use of electricity in a manner not authorized by the licensee of the Board. `Authorization' refers to the permission of the licensee to use of electricity', subject to the terms and conditions for such use and the law governing the subject.
30. To put it more aptly, the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as `unauthorized use of electricity'. But this general view will have to be examined in the light of the fact that the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act.....
41. The `unauthorized use of electricity' means the usage of electricity by the means and for the reasons stated in sub-clauses (i) to (v) of clause (b) of Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of `unauthorised use' in the section cannot be construed as exhaustive. The `unauthorized use of electricity' would mean what is stated under that Explanation, as well as such other unauthorized user, which is squarely in violation of the above-mentioned statutory or contractual provisions."
26. After referring to the dictionary meaning of the word, "unauthorised" and considering the decision of the Apex Court in M.C.Mehta v. Union of India reported in 2006 (3) SCC 399, at Paragraphs 44 to 52, the Supreme Court, held as follows:
"44. The unauthorized use of electricity in the manner as is undisputed on record clearly brings the respondent `under liability and in blame' within the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the 2003 Act.
45. The expression `means' used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. In terms of Black's Law Dictionary (Eighth Edition) page 1001, `mean' is - `of or relating to an intermediate point between two points or extremes' and `meaning' would be `the sense of anything, but esp. of words; that which is conveyed'. The word ordinarily includes a mistaken but reasonable understanding of a communication. `Means' by itself is a restrictive term and when used with the word `includes', it is construed as exhaustive. In those circumstances, a definition using the term `means' is a statement of literal connotation of a term and the courts have interpreted `means and includes' as an expression defining the section exhaustively. It is to be kept in -mind that while determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the Section, scheme of the Act, the object of the Legislature and its intent.
46. `Purposive construction' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be over-stated or over-extended. Without being over-extended or over-stated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other -words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.
48. Another similar rule is the rule of practical interpretation. This test can be effectuatedly applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We have also indicated above that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act.
50. In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorized use of the electricity as well as to ensure prevention of revenue loss. It is in this background that the scope of the expression `means' has to be construed. If we hold that the expression `means' is exhaustive and cases of unauthorized use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply, regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the Legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.
51. The primary object of the expression `means' is intended to explain the term `unauthorized use of electricity' which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The Legislature has intentionally omitted to use the word `includes' and has only used the word `means' with an intention to explain inter alia what an unauthorized use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003 Act were both amended/substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.
52. The expression `means' would not always be open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exhaustive. There can be a large number of cases and examples where even the expression `means' can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing that law.
27. After considering K.V.Muthu v. Angamuthu Ammal reported in 1997 (2) SCC 53 and Union of India v. Prabhakaran Vijaya Kumar reported in 2008 (9) SCC 527, at Paragraphs 58, 60 to 62, the Apex Court explained the word "means", as follows:
"58. The above judgments clearly support the view that we have taken with reference to the facts and law of the present case. It cannot be stated as an absolute proposition of law that the expression `means' wherever occurring in a provision would inevitably render that provision exhaustive and limited. This rule of interpretation is not without exceptions as there could be statutory provisions whose interpretation demands somewhat liberal construction and require inclusive construction. An approach or an interpretation which will destroy the very purpose and object of the enacted law has to be avoided. The other expressions used by the Legislature in various sub-clauses of Explanation (b) of Section 126 of the 2003 Act are also indicative of its intent to make this provision wider and of greater application. Expressions like `any artificial means', `by a means not authorised by the licensee' etc. are terms which cannot be exhaustive even linguistically and are likely to take within their ambit what is not specifically stated. For example, `any artificial means' is a generic term and so the expression `means' would have to be construed generally.
60. The expressions `means', `means and includes' and `does not include' are expressions of different connotation and significance. When the Legislature has used a particular expression out of these three, it must be given its plain meaning while even keeping in mind that the use of other two expressions has not been favoured by the Legislature. To put it simply, the Legislature has favoured non-use of such -expression as opposed to other specific expression. In the present case, the Explanation to Section 126 has used the word `means' in contradistinction to `does not include' and/or `means and includes'. This would lead to one obvious result that even the Legislature did not intend to completely restrict or limit the scope of this provision.
61. Unauthorised use of electricity cannot be restricted to the stated clauses under the explanation but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the regulations and provisions of the 2003 Act governing such supply. `Unauthorised use of electricity' itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the regulations framed and the provisions of the 2003 Act.
62. The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities. If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties may be imposed upon him as contemplated under the contractual, regulatory and statutory regime. The Orissa Electricity Regulatory Commission, in exercise of its powers under Section 181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf, made the regulations to govern distribution and supply of electricity and procedure thereof such as system of billing, modality of payment, the powers, functions and applications of the distribution licensees form for supply and/or suppliers and the rights and obligations of the consumers. These were called `Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (hereinafter referred to as `Conditions of Supply) vide notification dated 21st May, 2004."
28. The word dishonestly defined in Section 24 of the Indian Penal Code, states that, Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss of another person, is said to do that thing dishonestly. Collins English Dictionary explains the word `dishonest' as `not honest or fair; deceiving or fraudulent'. Black's Law Dictionary (Eighth Edition) explains the expression `dishonest act' as a fraudulent act, `fraudulent act' being a conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude.
29. In Dr.S.Dutt v. State of Uttar Pradesh reported in AIR 1966 SC 523 = (1966) 1 SCR 493, the Supreme Court has coined the word, dishonestly as a person, who does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In yet another decision made in Ramratan v. State of Bihar reported in AIR 1965 SC 926, the Supreme Court observed as follows:
A person is said to do a thing dishonestly when he does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In the case of illegal seizures and impounding of cattle, the person seizing the cattle does not gain anything. He simply takes the cattle to the pound. He does not use them for his purpose.
30. Reverting back to the case on hand, perusal of the notice, dated 25.09.2012, issued by the Executive Engineer, Hosur, clearly shows that the word theft in P aragraph 2 has been struck off and instead the word use has been mentioned. However, the said authority has alleged that the petitioner had unauthorisedly used electricity supply for construction activities, with an intention to cause loss to TANGEDCO Limited and thus, the said act falls within Section 135(1)(a) to (e) of the Electricity Act, 2003.
31. Though the Executive Engineer, at Paragraph 2 of the said Notice, while directing the petitioner, under Section 152 of the Electricity Act, 2003, to make the compounding charges of Rs.94,000/-, has struck off, the word, theft and on the contrary, employed the word used, but at the same time, at Paragraph 3 of the said notice, the said Authority has observed the unauthorised use as, theft, in terms of Section 135(1)(a) to (e) of the Act, punishable under the Electricity Act.
32. Notice, dated 25.09.2012, directing the petitioner to pay a sum of Rs.6,28,616/-, for the alleged loss to the Electricity Department, also shows that what has been alleged against the petitioner is that the Electricity given for factory purpose, has been used for construction activity, which according to the respondents, is an act, falling under Section 135(1)(a) to (e) of the Electricity Act, 2003.
33. Explanation (b)(iv) to Sub-Section (6) of Section 126 of the Electricity Act, substituted by Act 26 of 2007, with effect from 15.06.2007, states that, for the purpose other than for which the usage of electricity was authorised Section 135 of the Act, before and after substitution by Act 26 of 2007, with effect from 15.06.2007, is given below:
Before Substitution:
1) Whoever, dishonestly,-
a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a Licensee; or
b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity.
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means not authorised by the Board or Licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
After Substitution:
(1) Whoever, dishonestly:-- (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may --
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
34. As per the procedure prescribed under Section 126 of the Electricity Act, the authority, who inspects the equipments, gadgets, machines, after inspection of any meter, maintained by any person, comes to the conclusion that such person was indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
35. As per sub-Sections 2 to 5 of Section 126 of the Act, the order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person. Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. If the assessing officer reaches a conclusion that unauthorised use of electricity had taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity had taken place and if, however, the period during which such unauthorised use of electricity had taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Sub-Section (6) of Section 126 of the Act, the assessment under the Section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-Section (5).
36. A procedure is also contemplated in the case of theft, falling under any of the acts, enumerated under Section 135(1)(a) to (e) of the Act. But the said Section speaks about fine, which is as follows:
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity.
37. Section 135 of the Act also empowers the licencee, to immediately disconnect the supply of electricity, upon detection of such theft of electricity, which reads as follows:
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
38. Thus, a comparative reading of Sections 126 and 135 of the Electricity Act, shows that in the case of use of electricity, for the purpose, other than for which, the usage of electricity, was authorised, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. The presumption of commission of theft rests solely on the subjective satisfaction of the Inspecting Officer. It could be made on the basis of the evidence available at the time of inspection. Whereas, if it is a case falling under Section 126 of the Act, 15 days' notice is given for disconnection. The reason for immediate disconnection could be conceived that the offence of theft cannot be allowed to be perpetuated by the Consumer. If the alleged abstraction or consumption or usage or attempted abstraction or attempted consumption or attempted usage, does not exceed 10 kilowatt, a fine shall be imposed on first conviction, not less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the fine imposed shall not be less than six times the financial gain on account of such theft of electricity. If such things exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times, the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity. Except the Special Court, nobody can impose fine or sentence of imprisonment.
39. Proviso to Section 135(1-A) of the Act, states that the licensee or the supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of the Act, shall, without prejudice to the obligation to lodge a complaint, as referred to in the second proviso to the clause, restore the supply line of electricity within forty-eight hours of such deposit or payment. The manner of assessment, in the case of theft, has not been provided for in Section 135 of the Electricity Act, 2003.
40. However, perusal of the Tamil Nadu Electricity Supply Code, 2004, shows that in case of tampering of meter and theft of electricity, the procedure for assessment of the electricity charges, disconnection of supply of electricity and removing of the meter, electric line, electric plant and other apparatus, in case of theft of electricity, is provided for under Regulation 23-AA of the said Code. The notification, dated 23.08.2007, prescribing a procedure is a substitution to the one, which prevailed earlier. A reading of the Regulation 23(AA), shows the position before and after substitution, dated 23.08.2007, with effect from 15.06.2007 and it is as follows:
Before Substitution:
(AA) 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 is detailed below:
(1) The officer authorized under sub-section (2) of section 135 of the Act (hereinafter referred to as the authorized officer), may either suo-motu or on receipt of reliable information regarding theft of electricity in any premises, conduct inspection of such place or premises (The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.).
(2) The authorized officer shall prepare a report at the place or premises giving details such as connected load, condition of seals, working of meter and record, modus operandi adopted for theft of energy. Any damage or destruction to the electric meter, metering equipments, apparatus, line, cable or electrical plant of the licensee concerned caused or allowed to be caused by the accused person so as to interfere with the proper or accurate metering of electricity or for theft of electricity shall also be duly recorded in the report indicating whether conclusive evidence substantiating the fact that theft of energy was found or not. The authorized officer may also take photo or prepare a diagram illustrating the arrangements found to have been made for theft of electricity, wherever feasible and such photo or diagram shall form a part of inspection report.
(3) In case of suspected theft by tampering of meter or metering equipment, meter connection security seal or by replacing original seal by bogus seal, the meter shall be removed and sealed and a separate report shall be prepared on the condition of the meter and metering equipment removed and sealed. At the time of sealing, signatures of the accused person and also of the officers of licensee concerned and any other witness shall be obtained on this report. This report shall also form a part of the inspection report. The supply shall be restored through a meter tested in a accredited test laboratory and metering equipment of appropriate rating. In such cases, the licensee concerned shall also verify the connected load at the premises and record details of equipment found in the premises, in the inspection report.
(4) In cases where the theft of electricity by by-passing the meter or metering equipment is detected and the electrical load, fully or partially, or the accused person's connection is found connected directly with the lines, cables or electrical plant, electric supply to such premises shall be disconnected forthwith on the spot by the licensee concerned and shall be restored only after the cause of theft is removed to the satisfaction of the licensee concerned and the accused person gives an undertaking to pay charges of assessment bill, with due opportunity to him for making representation.
(5) In cases of theft by direct tapping from the licensee's lines, cables or electrical plant of the licensee, if the accused person unauthorizedly connects or reconnects any meter of the licensee in a disconnected service, then electric supply to such premises or place shall be disconnected forthwith by the licensee concerned. The licensee concerned may subsequently remove or divert or convert his line, cable or electrical plant to prevent further theft of electricity provided that such action shall not result in any inconvenience in affording quality supply or disruption of supply, to other consumers.
(6) The authorized officer and any other officer of the licensee concerned who accompanied the authorized officer shall sign the inspection report in all the above cases and obtain signatures of the accused person or his representative and the same must be handed over to the accused person or his representative at site immediately under proper receipt. In case of refusal by the accused person either to sign or accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in or outside the premises and a note recorded on the office copy of the inspection report to the effect that the copy of the report has been pasted at the conspicuous place of the premises. A copy of the report shall be subsequently sent to the accused person of the premises under registered post within three days of inspection.
(7) Where it is established that there is a case of theft of energy, the authorized officer shall assess the quantum of energy consumption for the past twelve months as per the assessment formula given in Form 8 in Appendix to this code and prepare provisional assessment order for the charges for such consumption at two times of the tariff applicable (i.e the applicable tariff for the purpose for which the pilfered energy was used) and serve on the accused person under proper receipt. The authorized officer may reduce the period for such billing if it is established by the facts or documents submitted in the representation of the accused person or any such other evidence observed by the authorized officer. Wherever electronic meters are installed and the load curves are studied periodically, the period of theft could be limited to the exact period as could be determined scientifically. The authorized officer shall record reasons for such reduction in the period of billing, in the assessment order. The energy consumption arrived at as per the formula referred to in the said Form 8 will be charged excluding the energy consumption recorded by the meter as per the rates specified by the Commissions Tariff Order.
(8) Within five days of inspection, the authorized officer shall serve on the accused person, provisional assessment order in the Form 9 in Appendix to this code for the charges for the theft of electricity based on the evidence recorded during the course of inspection. The order should clearly state the time, date and place at which the reply has to be submitted and the designation/ address of the officer to whom it should be addressed. The accused person shall be required to submit his representation within seven days of issue of the provisional assessment order.
(9) In case of suspected theft through a tampered meter, such tampered meter taken out and sealed at the time of inspection, as prescribed in sub regulation (3), shall be sent to the third party accredited meter testing laboratory as arranged by the licensee concerned or to the Chief Electrical Inspector to the State Government till such time the third party meter testing arrangement is established by the licensee concerned. The accused person shall be given a notice of seven working days for witnessing the test of such meter at such meter testing laboratory. The notice shall clearly indicate the time, date and place wherein the suspected tampered meter shall be tested and the accused person shall be allowed to witness the test. The accused person shall duly sign the test results report after witnessing it. If such accused person does not turn up at the meter testing laboratory on the appointed date and time indicated in the notice to witness the test or refuses to sign the test results, the licensee concerned shall carryout the test in the absence of such accused person / refusal to sign the test results and shall send a copy of results to the accused person through registered post within three days of the date of testing.
(10) In cases where the meter has been tested at such meter testing laboratory and where it is established that there is a case of theft of energy, the procedure for assessment as specified in sub regulation (7) shall be followed.
(11) In case the accused person does not respond to the provisional order within seven working days, the licensee concerned may proceed to initiate the recovery against the provisional assessment order.
(12) Within seven working days from the date of submission of such accused persons reply, if made within the seven working days from the date of receipt of provisional assessment order, the authorized officer shall arrange a personal hearing with such accused person. For this purpose the authorized officer shall serve a three days notice to such accused person to allow him for a personal hearing and shall also allow any additional submission of new facts or documents if any, during the course of hearing by such accused person. If such accused person does not respond to the notice in the matter, the authorized officer shall proceed to issue the final assessment order, as per the procedure specified herein after.
(13) Before the personal hearing, the authorized officer before whom personal hearing shall be conducted, shall analyze the case after carefully considering all the documents, submissions by the accused person, facts on record and the consumption pattern, whatever available.
(14) The authorized officer shall also compute the quantum of energy consumption for the past twelve months. The Assessment Officer may study the energy consumption pattern of the Service Connection concerned for the past one year or more. If necessary, it may also be compared with the load/production pattern or output of the service connection. In case of suspected theft, if consumption pattern is commensurate with the assessed consumption or in case of the decision that the case of suspected theft is not established, no further proceedings shall be taken and the decision shall be communicated to the accused person under proper receipt within three working days.
(15) Considering the facts submitted by the accused person the authorised officer shall pass, within seven working days from the date of enquiry, a final assessment order in Form 10 in Appendix to this code If the accused person does not respond to the personal hearing, the authorised officer shall issue a final assessment order within fifteen days from the issuance of provisional assessment order. Final assessment order shall contain a brief of inspection report, submissions made by accused person in his written reply as well as during his personal hearing and reasons for acceptance or rejection of the same and the assessment charges as per sub-regulation (12). In the final assessment order, charges, if any, paid by the accused person during the period for which the assessment is done shall be duly credited, if warranted, to avoid duplication of billing for such period.
(16) The accused person shall be required to make the payment within seven working days of receipt of final assessment order.
(17) The authorized officer may, taking into consideration the financial position and other conditions of the accused person, extend the last date of payment or approve the payment to be made in instalments on a written request made by the accused person and an undertaking is given by him to abide by the schedule of payment along with surcharge due, as per rules. The amount, the extended last date and or time schedule of payment in instalments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the accused person under proper receipt on the same day.
(18) In case of default in payment of the assessed amount, including default in payment of any of the scheduled instalments permitted by the authorized officer and agreed by the accused person, the licensee concerned shall, after giving a fifteen days notice in writing, disconnect the supply of electricity, remove meter and service line and also electrical plant for giving supply to this connection. However if the accused person makes payment within notice period, surcharge applicable to that category shall also be payable as prescribed in this code.
(19) In case where the theft of electricity in the premises which does not have regular electricity connection, has been detected and the licensee concerned shall forthwith disconnect the supply to such premises. In such premises supply shall be restored only after the accused person has cleared the dues to be paid on account of charges assessed for theft of electricity in full and has availed a regular new connection after completing the required formalities.
(20) If the accused person does not make payment, the licensee concerned may proceed to recover its dues against such order and take such further action as is permitted under the Act.
(21) If no person is available to whom the provisional or final assessment order can be served with reasonable diligence or if any person refuses to accept or avoids to receive such order, it shall be affixed at the inspected premises in the presence of two witnesses and in such case an endorsement to the effect shall be made in the copy of such order. An assessment order so affixed shall be deemed to have been duly served to the person or occupier of the premises.
(22) In all the above cases, except the cases for which compounding money has already been collected, the licensee shall file a complaint as provided for in section 151 of the Act, against the accused person suspected to have committed the theft of electricity on the basis of the materials collected by the authorized officer who has conducted the inspection. In case of compounding the notice as in Form 11 in Appendix to this code may be issued and the amount collected as per section 152 of the Act.
Explanation: For the purpose of this regulation and regulation 23-BB:
(a) "accused person" shall mean and include the owner or occupier of the premises or his authorized agent or representative or any other person who is in occupation or possession or in charge of the premises at the relevant time of detection of theft of electricity or any other person who has been benefited by the theft of electricity.
(b) authorised officer, shall in case if he is not an officer of the licensee concerned, mean and include an officer designated or appointed as an authorised officer by the State Government for the purpose of dealing with theft of electricity as provided in the Act, including the assessment of theft of energy empowered under this code.
(c) "licensee concerned " means and includes the licensee or his franchisee or his authorized agent or representative who alleges the occurrence of theft of electricity.
After Substitution:
(AA) 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 is given below:
(1) The officer authorized under sub-section (2) of section 135 of the Act (hereinafter referred to as the authorized officer), may either suo-motu or on receipt of reliable information regarding theft of electricity in any premises, conduct inspection of such place or premises (The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.).
(2)(a) The authorized officer shall prepare a report at the place or premises giving details such as connected load, condition of seals, working of meter and record, modus operandi adopted for theft of energy. Any damage or destruction to the electric meter, metering equipments, apparatus, line, cable or electrical plant of the Licensee or supplier concerned, caused or allowed to be caused by the accused person so as to interfere with the proper or accurate metering of electricity or for theft of electricity shall also be duly recorded in the report indicating whether conclusive evidence substantiating the fact that theft of energy was found or not. The authorized officer may also take photo or prepare a diagram illustrating the arrangements found to have been made for theft of electricity, wherever feasible and such photo or diagram shall form a part of inspection report. Upon detection of such theft of electricity, the officer of the licensee or supplier, as the case may be, as authorized for the purpose by the Commission, may, immediately disconnect the supply line of electricity and a complaint shall be lodged in the police station as per the procedure stipulated in section 135 (1A) of the Act on the basis of the materials collected by the Assessment officer who has conducted the inspection. The supply to the premises shall be restored only after satisfying the stipulation of the third proviso of section 135 (1A) of the Act.
(b) To carry out all or any of the above acts specified in subsection (1A) of section 135 of the Act, the Commission authorises the same officers of the Licensee or the supplier as authorised by the Government of Tamil Nadu to do all or any of the acts specified in clauses (a) to (c) of sub-section (2) of section 135 of the Act.
(3) In case of suspected theft by tampering of meter or metering equipment, meter connection security seal or by replacing original seal by bogus seal, the meter shall be removed and sealed and a separate report shall be prepared on the condition of the meter and metering equipment removed and sealed. At the time of sealing, signatures of the accused person and also of the officers of licensee or supplier concerned, as the case may be, and any other witness shall be obtained on this report. This report shall also form a part of the inspection report. The supply shall be restored only through a meter tested in an accredited test laboratory and metering equipment of appropriate rating subject to satisfying the condition as specified in sub-regulation (2). In such cases, the licensee or supplier concerned, as the case may be, shall also verify the connected load at the premises and record details of equipment found in the premises, in the inspection report.
(4) In cases where the theft of electricity by by-passing the meter or metering equipment is detected and the electrical load, fully or partially, or the accused person's connection is found connected directly with the lines, cables or electrical plant, electric supply to such premises shall be disconnected forthwith as stipulated in sub-regulation (2) and shall be restored only after the cause of theft is removed to the satisfaction of the licensee or supplier concerned, as the case may be, and subject to satisfying the condition as stipulated in sub-regulation(2).
(5) In cases of theft by direct tapping from the licensees or suppliers lines, cables or electrical plant of the licensee or supplier, if the accused person unauthorizedly connects or reconnects any meter of the licensee or supplier in a disconnected service, then electric supply to such premises or place shall be disconnected forthwith as stipulated in sub-regulation (2). The licensee or supplier concerned, as the case may be, may subsequently remove or divert or convert his line, cable or electrical plant to prevent further theft of electricity provided that such action shall not result in any inconvenience in affording quality supply or disruption of supply, to other consumers.
(6) The authorized officer and any other officer of the licensee or supplier concerned, as the case may be, who accompanied the authorized officer shall sign the inspection report in all the above cases and obtain signatures of the accused person or his representative and the same must be handed over to the accused person or his representative at site immediately under proper receipt. In case of refusal by the accused person either to sign or accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in or outside the premises and a note recorded on the office copy of the inspection report to the effect that the copy of the report has been pasted at the conspicuous place of the premises. A copy of the report shall be subsequently sent to the accused person of the premises under registered post within three days of inspection.
(7) Where it is established that there is a case of theft of energy, the authorized officer shall assess the quantum of energy consumption for the past twelve months as per the assessment formula given in Form 8 in Appendix to this code and prepare provisional assessment order for the charges for such consumption at two times of the tariff applicable (i.e the applicable tariff for the purpose for which the pilfered energy was used) and serve on the accused person under proper receipt. The authorized officer may reduce the period for such billing if it is established by the facts or documents submitted in the representation of the accused person or any such other evidence observed by the authorized officer. Wherever electronic meters are installed and the load curves are studied periodically, the period of theft could be limited to the exact period as could be determined scientifically. The authorized officer shall record reasons for such reduction in the period of billing, in the assessment order. The energy consumption arrived at as per the formula referred to in the said Form 8 will be charged excluding the energy consumption recorded by the meter as per the rates specified by the Commissions Tariff Order.
(8) Within five days of inspection, the authorized officer shall serve on the accused person, provisional assessment order in the Form 9 in Appendix to this code for the charges for the theft of electricity based on the evidence recorded during the course of inspection. The order should clearly state the time, date and place at which the reply has to be submitted and the designation/address of the officer to whom it should be addressed. The accused person shall be required to submit his representation within seven days of issue of the provisional assessment order.
(9) In case of suspected theft through a tampered meter, such tamperedmeter taken out and sealed at the time of inspection, as prescribed in sub regulation (3), shall be sent to the third party accredited meter testing laboratory as arranged by the licensee or supplier concerned, as the case may be, or to the Chief Electrical Inspector to the State Government till such time the third party meter testing arrangement is established by the licensee or supplier concerned, as the case may be. The accused person shall be given a notice of seven working days for witnessing the test of such meter at such meter testing laboratory. The notice shall clearly indicate the time, date and place wherein the suspected tampered meter shall be tested and the accused person shall be allowed to witness the test. The accused person shall duly sign the test results report after witnessing it. If such accused person does not turn up at the meter testing laboratory on the appointed date and time indicated in the notice to witness the test or refuses to sign the test results, the licensee or supplier concerned, as the case may be, shall carryout the test in the absence of such accused person and shall send a copy of results to the accused person through registered post within three days of the date of testing.
(10) In cases where the meter has been tested at such meter testing laboratory and where it is established that there is a case of theft of energy, the procedure for assessment as specified in sub regulation (7) shall be followed.
(11) In case the accused person does not respond to the provisional order within seven working days, the licensee or supplier concerned, as the case may be, may proceed to initiate the recovery against the provisional assessment order.
(12) Within seven working days from the date of submission of such accused persons reply, if made within the seven working days from the date of receipt of provisional assessment order, the authorized officer shall arrange a personal hearing with such accused person. For this purpose the authorized officer shall serve a three days notice to such accused person to allow him for a personal hearing and shall also allow any additional submission of new facts or documents if any, during the course of hearing by such accused person. If such accused person does not respond to the notice in the matter, the authorized officer shall proceed to issue the final assessment order, as per the procedure specified herein after.
(13) Before the personal hearing, the authorized officer before whom personal hearing shall be conducted, shall analyze the case after carefully considering all the documents, submissions by the accused person, facts on record and the consumption pattern, whatever available.
(14) The authorized officer shall also compute the quantum of energy consumption for the past twelve months. The Assessment Officer may study the energy consumption pattern of the Service Connection concerned for the past one year or more. If necessary, it may also be compared with the load/production pattern or output of the service connection. In case of suspected theft, if consumption pattern is commensurate with the assessed consumption or in case of the decision that the case of suspected theft is not established, no further proceedings shall be taken and the decision shall be communicated to the accused person under proper receipt within three working days and the supply to the premises shall be restored forthwith.
(15) Considering the facts submitted by the accused person, the authorised officer shall issue, within seven working days from the date of enquiry, a final assessment order in Form 10 in Appendix to this code. If the accused person does not respond to the personal hearing, the authorised officer shall issue a final assessment order within fifteen days from the issuance of provisional assessment order. This speaking order shall contain a brief of inspection report, submissions made by accused person in his written reply as well as during his personal hearing and reasons for acceptance or rejection of the same and the assessment charges as per sub-regulation (12). In the final assessment order, charges, if any, paid by the accused person during the period for which the assessment is done shall be duly credited, if warranted, to avoid duplication of billing for such period.
(16) The final assessment amount and the last date should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the accused person under proper receipt on the same day.
(17) The accused person shall be required to make the payment within seven working days of receipt of final assessment order. On deposit or payment of the assessed amount or electricity charges by the accused person, supply to the premises shall be restored as referred to in the third proviso of section 135 (1A) of the Act.
(18) In case of default in payment of the assessed amount, the licensee or supplier concerned, as the case may be, shall, after giving a fifteen days notice in writing, remove meter and service line and also electrical plant for giving supply to this connection. However if the accused person makes payment within notice period, surcharge applicable to that category shall also be payable as prescribed in this code.
(19) In case where the theft of electricity in the premises which does not have regular electricity connection, has been detected and the licensee or supplier concerned, as the case may be, shall forthwith disconnect the supply to such premises. In such premises supply shall be given only after the accused person has cleared the dues to be paid on account of charges assessed for theft of electricity in full including surcharge if any and has availed a regular new connection after completing the required formalities.
(20) If the accused person does not make payment, the licensee or supplier concerned, as the case may be, may proceed to recover its dues against such order and take such further action as is permitted under the Act.
(21) If no person is available to whom the provisional or final assessment order can be served with reasonable diligence or if any person refuses to accept or avoids to receive such order, it shall be affixed at the inspected premises in the presence of two witnesses and in such case an endorsement to the effect shall be made in the copy of such order. An assessment order so affixed shall be deemed to have been duly served to the person or occupier of the premises.
(22) In case of compounding the notice as in Form 11 in Appendix to this code may be issued and the amount collected as per section 152 of the Act.
Explanation: For the purpose of this regulation and regulation 23-BB:
(a) "accused person" shall mean and include the owner or occupier of the premises or his authorized agent or representative or any other person who is in occupation or possession or in charge of the premises at the relevant time of detection of theft of electricity or any other person who has been benefited by the theft of electricity.
(b) authorised officer, shall in case if he is not an officer of the licensee or supplier, as the case may be, mean and include an officer designated or appointed as an authorised officer by the State Government for the purpose of dealing with theft of electricity as provided in the Act, including the assessment of theft of energy empowered under this code.
(c) "licensee or supplier" means and includes the licensee or supplier, as the case may be or his franchisee or his authorized agent or representative who alleges the occurrence of theft of electricity."
41. Forms 8 to 11 of the Tamil Nadu Supply Code, 2004, deal with the Formula to assess the quantum of energy, in case of theft of electricity; provisional assessment order for theft of energy under Section 135/138 of the Electricity Act, 2003; final assessment order for theft of energy under Section 135 of the Electricity Act, 2003; and Compounding of the offence under Section 152 of the Electricity Act, 2003 respectively, under Regulation 23(AA)(7)(8)(15) & (22), which are extracted hereunder:
Form 8 [See Regulation 23 (AA) (7)] Formula to assess the quantum of energy in case of theft of electricity The following factors are to be considered to arrive at a formula for the assessment of quantum of energy in case of theft of electricity.
(i) Nature of Service
(ii) Connected load / Contracted demand
(iii) Load factor
(iv) Nature of feeder (Rural / Urban / Industrial) and supply restrictions in the feeder
(iv) Per day usage hours for which assessment has to be made.
The authorized officer may take into account the following and arrive at the least period (duration) of theft:
i. for the period of twelve months ii. for the period from the date of prior inspection if any by the Enforcement or meter testing wing to the date of detection iii. from the date of service connection to the date of detection iv. wherever electronic meters are installed and the load curves are studied periodically the period of theft could be limited to the exact period as could be determined scientifically.
v. Based on the document produced by the accused person.
vi. For any other reasonable period as assessed by the authorized officer to the best of his judgment L x LF x H x D U = --------------------
DF Where U = Quantum of energy Assessed in Units L = Load / demand in KW LF = Load factor H = Number of hours the load is considered to be used in a day.
D = Duration of assessment in days DF = Diversity Factor The following tables give the Load Factor, and the Number of hours per day usage for different categories of usage of the pilfered Energy.
TABLE A Usage Categories of pilfered energy Diversity factor Load Factor Number of hours per day Domestic (without Air conditioning load) and Huts 1 30% 12 Domestic (with Air conditioning load) 1 March to September 70% 12 Other months 30% 12 Industrial including cottage industries, 1 80% As per Table-B power looms etc., Public lighting and water supply 1 100% 8 Agricultural 1 100% 10 All other categories 1.1 90% 12 TABLE-B Category Number of hours per day 1 2 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 Fed by High Tension feeders having 24 hours of supply :-
i. Day shift only ii. 2 Shifts iii. 3 Shifts 6 8 14 8 16 24 i. The term Usage Categories given in Table - A refers to the purpose for which the suspected pilfered energy is used. For example if the pilfered energy in a hut service connection is used for domestic purpose, the assessment shall be made under domestic category, if it is used for commercial purpose, it shall be assessed under all other categories as mentioned in the above Table A. ii (a) For High Tension Service connections, the maximum demand shall be assessed as 75% of the total connected load at the time of inspection subject to a minimum of the contracted demand. A power factor of 0.90 lag may be used for conversion of KVA or KW.
(b) Assessment of demand charges:-
Twice the appropriate H.T. tariff rate for maximum demand.
Form 9 [See Regulation 23 (AA) (8)] Provisional Assessment order for theft of energy under section 135/138 of the Electricity Act, 2003 From To (The Authorised Officer), (Full address of the person in whose name the service connection stands (or) occupier (or) enjoyer, etc.) Letter No...,dated..
Sir, Sub: Theft of energy Detected in SC No Provisional Assessment Order Reg.
Ref: Inspection Report dated 1.0 On..(the day, month, year of inspection) at.. (time) hours the service connection in SC No.. located at Door No, in SF No. (Full address of the service connection) which is/was in the name of Thiru/Thirumathy was inspected by me in the presence of you/your representative Thiru/Thirumathy .. 2.0 * During the inspection it was found that an offence of theft of energy has been committed ..(describe the actual mode of theft with details of artificial means found in the service/unauthorized reconnection of a disconnected service connection). By committing the said offence, you have dishonestly abstracted, consumed and used energy with the intention to defraud the licensee.
The above said illegal abstraction, consumption and use of energy is punishable under section 135 of the Electricity Act 2003.
3.0 The approximate loss caused by you due to dishonest abstraction/illegal restoration of supply is assessed at Rs. (Rupees ) in accordance with the regulations of the Tamil Nadu Electricity Supply Code, and a working sheet is enclosed herewith.
4.0 The assessment amount as referred to above shall be paid within 7 working days from the date of receipt of this order.
5.0 If you are desirous of filing objections, if any, against the provisional assessment, you may send your explanation to the address of the undersigned with sufficient proof, within seven days from the date of receipt of this order. You may also choose to appear in person or through an authorised representative with relevant documents for an enquiry before the undersigned.
6.0 You are requested to acknowledge the receipt of this order immediately.
Yours faithfully, Authorised Officer.
Encl: Copies of
1. Report
2. Statement Recorded (if any)
3. Mahazar Copy submitted to: .
Copy to He is instructed to arrange to serve this order to the accused person with dated acknowledgement and send the acknowledgement to this office.
Form 10 [See Regulation 23 (AA) (15)] Final Assessment order for theft of energy under section 135 of the Electricity Act, 2003 From To (The Authorised Officer), (Full address of the person in whose name the service connection stands (or) occupier (or) enjoyer etc.) Letter No...,dated..
Sir, Sub: Theft of energy Detected in SC No.Final Assessment Order Reg. Ref: 1. Provisional Assessment Order 2. Your reply. *****
1.0 On..(the day, month, year of inspection) at.. (time) hours the service connection in SC No.. located at Door No, in SF No. (Full address of the service connection) which is/was in the name of Thiru/Thirumathy was inspected by me in the presence of you/your representative Thiru/Thirumathy .
2.0 During the inspection it was found that an offence of theft of energy has been committed .. (describe the actual mode of theft with details of artificial means found in the service/unauthorized reconnection of a disconnected service connection).
By committing the said offence, you have dishonestly abstracted, consumed and used energy with the intention to defraud the licensee. The above said illegal abstraction, consumption and use of energy is punishable under section 135 of the Electricity Act 2003.
3.0 A provisional assessment was issued to you in the reference cited and you were allowed to file your objections and to appear for a hearing as per the Tamil Nadu Electricity Supply Code.
4.0 On a detailed examination and on consideration of your explanation offered, facts and records furnished in your letter / during the personal hearing, it is found that the theft of electricity has been committed by you as described below:-
(A reasoned/detailed order to be passed by the Officer concerned taking into consideration the theft of electricity noticed, explanation and the findings. Reference to be made to the materials in support of the claim of the licensee about the existence of theft, the involvement or the role of the consumer with reference to the said theft of energy, submissions made by accused person in his written reply as well as during his personal hearing and reasons for acceptance or rejection of the same).
5.0 The loss caused by you due to dishonest* abstraction/*illegal restoration of supply is assessed at Rs(Rupees ) in accordance with the regulations of the Tamil Nadu Electricity Supply Code, and a working sheet is enclosed herewith. The assessment amount referred to above shall be paid within seven working days from the date of receipt of this order.
You are requested to acknowledge the receipt of this order immediately.
Yours faithfully, Authorised Officer.
Encl: Copies of
1. Report
2. Statement Recorded (if any)
3. Mahazar
4. Provisional Assessment Order.
Copy submitted to:
He is instructed to arrange to serve the order to the accused person with dated acknowledgement and send the same to this office.
Form 11 [See Regulation 23(AA) (22)] Compounding of offence under section 152 of the Electricity Act, 2003.
From To (The Authorized Officer), (Full address of the person in whose name the service connection stands (or) occupier (or) enjoyer, etc.) Letter No...,dated.. Sir,
Sub: Theft of energy Detected in SC No. Order on Compounding Amount Reg.
1.0 On..(the day, month, year of inspection) at.. (time) hours the service connection in SC No.. located at Door No, in SF No. (Full address of the service connection) which is/was in the name of Thiru/Thirumathy was inspected by me in the presence of you/your representative.. Thiru/Thirumathy ..
2.0 * During the inspection it was found that an offence of theft of energy has been committed.......(describe the actual mode of theft with details of artificial means found in the service/unauthorized reconnection of a disconnected service connection). By committing the said offence, you have dishonestly abstracted, consumed and used energy with the intention to defraud the licensee.
3.0 The above said illegal abstraction, consumption and use of energy is punishable under section 135 of the Electricity Act 2003.
4.0 As you have opted for compounding of offence under section 152 of the Electricity Act, 2003, you are requested to pay Rs.. (Rupees ) towards the compounding of the offence as mentioned above.
Yours faithfully, Authorized officer.
Working Sheet.
Copy to:
42. Thus, a comparative study of the provisions, Sections 126 and 135 of the Electricity Act, clearly shows that under both the provisions, (1) a Consumer alleged to have indulged in unauthorised use of electricity, for the purpose, other than the use of electricity was authorised or for the premises or areas other than those for which the supply of electricity was authorized, without any dishonest intention and (2) whoever, dishonestly uses the electricity for the purposes, other than which, the usage of electricity was authorised, so as to abstruct or consume or use the electricity, is provided with an opportunity of filing his objections, before the authorised officer, against the provisional assessment and in both the cases, an opportunity of hearing, is provided, before the final order of assessment is passed.
43. Regulations 19 and 19-A of the Tamil Nadu Electricity Supply Code, 2004, prescribes the procedure for assessment in the case, falling under Section 126 of the Act and for disconnection of supply of electricity and removal of the unauthorised usage of electricity, respectively and that the same are extracted:-
19. Unauthorized use of Electricity Investigation and Enforcement Provisions:-
Section 126 of the Act deals with the provisions for investigation and enforcement in cases of unauthorized use of electricity and reads as follows :
Assessment: (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place of premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the Licensee within seven days of service of such provisional assessment order upon him:
(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).
Explanation: For the purposes of this section,--
(a) "assessing officer" means an officer of a State Government or Board or Licensee, as the case may be, designated as such by the State Government;
(b) "unauthorized use of electricity" means the usage of electricity--
i) by any artificial means; or
ii) by a means not authorized by the concerned person or authority or Licensee; or
iii) through a tampered meter; or
iv) for the purpose other than for which the usage of electricity was authorized; or
v) for the premises or areas other than those for which the supply of electricity was authorised.
19-A Procedure for disconnection of supply of electricity and removal of the unauthorized usage of electricity:
(1) An assessing officer mentioned under section 126 of the Act, may either suo motu or on receipt of reliable information regarding unauthorized use of electricity in any premises conduct inspection of such premises.
(2) The assessing officer shall prepare a report giving details such as connected load, condition of seals, working of meter and record any irregularity noticed/ unauthorized use of electricity found.
(3) The report referred to in sub-regulation (2) shall clearly indicate whether conclusive evidence substantiating the fact that unauthorized use of electricity was found or not. The details of such evidence should be recorded in the report.
(4) In case of suspected unauthorised use of electricity, provisional assessment order shall be issued in the manner prescribed under the rules made by the State Government under section 126 (2) of the Act and final assessment order shall be issued by the assessment officer by following the procedure stipulated in section 126 of the Act. In respect of a tariff where different rates are adopted based on the slabs of consumption, the highest tariff rate specified in the tariff structure for the relevant category of service may be adopted.
(5) If the person does not deposit the assessed amount with the licensee concerned as stipulated under sub-section (4) of section 126 of the Act, the licensee concerned may proceed to recover such assessed amount and take such further action as is permitted under the Act.
(6) The enforcement provisions of the Act and the procedures given in this code shall be followed to recover the assessed amount from the person. In case of default in payment of the assessed amount, including default in payment of any of the installment permitted by the licensee concerned and agreed by the person, the licensee concerned may, after giving a fifteen days notice in writing disconnect the supply of electricity.
(7) The person shall remove the cause of unauthorized use immediately after its detection and give a written intimation to the licensee concerned. The licensee concerned shall check the claim of the person about the removal of the cause of unauthorized use of electricity, verified to his satisfaction. Failure of the person to remove the cause of unauthorized use shall result in levy of charges on account of unauthorized use of electricity till the cause of such unauthorised use of electricity is removed and verified and recorded by the licensee concerned or the onus of allegation of unauthorized use of electricity is rebutted by the person and accepted by the licensee concerned.
44. Regulation 20 deals with right of appeal under Section 127(1) of 2003 Act and that the same is given hereunder:
20. Appeal under Section 127 (1) of the Act:-
1. Every appeal petition made to the Appellate Authority prescribed under section 127 (1) of the Act shall be in Form 6 and shall be accompanied by a Demand Draft for an amount of Rs.100/- (Rupees one hundred only)
2. Verification of the Appeal Petition:
(a) Every appeal petition referred to above shall be verified by an Affidavit and every such Affidavit shall be in Form 7.
(b) Every affidavit shall be drawn up in the first person and shall state the full name, age, occupation and address of the deponent and the capacity in which he is signing and shall be signed and sworn before a person lawfully authorized to take and receive affidavits.
(c) Every affidavit shall clearly and separately indicate statements, which are true to the (i) belief of the deponent. (ii) knowledge of the deponents and (iii) Information received by the deponent.
(d) Where any statement in the affidavit is stated to be true to the information received by the deponent the affidavit shall also disclose the source of the information and a statement that the deponent believes that information to be true.
(3) After an appellate authority passes orders on an appeal and when the appellant defaults in making payment of the assessed amount, he, in addition to the assessed amount, shall be liable to pay, on expiry of thirty days from the date of order, an amount of interest at the rate of sixteen percent per annum, compounded every six months.
45. The distinction between the two cases, falling under Sections 126 and 135 of the Electricity Act, as regards disconnection is that in the case of unauthorised use of electricity for the purpose, for which, the use of electricity was authorised or for the premises or areas other than those, for which the supply of electricity was authorized, without any dishonest intention, disconnection is done after issuance of a notice and after a prescribed period of 15 days, as per 19-A(6) of the Tamil Nadu Electricity Supply Code, 2004, whereas, in the case of theft, it is immediate. Even in case of default in payment of the instalments, permitted in case of default in payment of the assessed amount, including default in payment of any of the scheduled instalments permitted by the authorized officer and agreed by the accused person, the licensee concerned shall, after giving a fifteen days notice in writing, disconnect the supply of electricity. Whereas, in the case of theft, the officer of the licencee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity, immediately, for the reason that the offence cannot be allowed to be perpetuated.
46. In the case of dishonest use of electricity, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity and it shall be punishable with an imprisonment for a term, which may extend to three years or with fine or with both. When the words, conviction and fine are used in Section 135 of the Electricity Act, 2003, it refers only the exercise of the powers, by a judicial authority, if a complaint is preferred under Section 135 of the Electricity Act, 2003.
47. As per the provisions of the Act, an officer of the licencee or supplier, as the case may be, shall lodge a complaint, relating to the commission of such offence in police station, having jurisdiction within twenty four hours from the time of such disconnection. On receipt of the complaint, such Police officer is authorised to exercise the powers under Chapter XII of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under the Electricity Act and thereafter, prepare a final report to be submitted to the Court of competent Criminal jurisdiction.
48. Thus, reading of the Electricity Laws and the decision in Sri Seetaram Rice Mills (cited supra), makes a distinction between a theft of electricity for the acts enumerated under Sections 135(1)(a) to (e), for which, prosecution is provided, in addition to the assessment of the loss of revenue or damage, on account of unauthorised use of electricity, for the purposes, other than the usage of electricity, for which, supply of electricity was authorised, with dishonest intention.
49. As per Regulation 23(AA) of the Tamil Nadu Electricity Supply Code, 2004, a definite procedure is prescribed, for provisional assessment and that the person accused of committing an offence under anyone or of all the acts, enumerated under Section 135(1)(a) to (e) of the Act, is entitled to submit his objections to the provisional assessment made by the authorised officer and he is also entitled to a personal hearing. As stated supra, in the cases, arising out of Sections 126 and 135 of the Electricity Act, 2003, loss of revenue has to be assessed and therefore, under the Tamil Nadu Electricity Supply Code, regulations have been made under Regulations 19 and 23(AA) of the Supply Code respectively, distinguishing as to how, the assessment has to be made, in case of use of unauthorised electricity for the purpose, for which, the use of electricity was authorised, with or without the intention, as the case may be.
50. Except the power conferred on the authorised officer to disconnect the electricity, forthwith, in the case of theft, under Section 135 of the Act, and to make a compaint in writing relating to the commission of such offence in the police station, having jurisdiction, within twenty four hours from the time of such disconnection, the procedure devised under the Tamil Nadu Supply Code, 2004, both under Section 126 and 136 of the Act, obligates the service of an order of provisional assessment, to the consumer, or to the accused person, as to whether, they had committed an act, with or without dishonest intention, and in both cases, an opportunity of personal hearing is contemplated.
51. Now, reverting back to the case on hand, from the facts, it could be deduced that on 25.09.2012, the Executive Engineer, (Operation and Maintenance), Tamil Nadu Generation and Distribution Corporation Ltd., Hosur, 3rd respondent, along with the Assistant Executive Engineer (O & M), C & I, Tamil Nadu Generation and Distribution Corporation Ltd., and the Assistant Executive Engineer, Enforcement (Vigilance), Tamil Nadu Generation and Distribution Corporation Ltd., have made an inspection in the factory premies of the petitioner and alleging theft of energy, the authority has issued a notice, under Section 152 of the Electricity Act, 2003, demanding compounding charges, to be paid by the writ petitioner and that the Executive Director, Mr.J.S.S.Rao, while acknowledging the said notice, has also made payment of Rs.94,000/- under protest. At this juncture, it is relevant to extract the endorsement made by Mr.J.S.S.Rao, Executive Director of the petitioner's factory, as follows:
"At the time of inspection, none of the said M/L's were in use. There was no misuse or violation. Under protest."
52. As stated supra, after collecting the compounding charges, vide letter, dated 25.09.2012, the Assistant Executive Engineer (E&I), Hosur, has demanded a sum of Rs.6,78,661/-, to be paid immediately, on the same day, enclosing a copy of the observation mahazar and working sheet. On the payment of the said amount under protest, the service connection HT SC No.303-IA, has been restored.
53. Materials on record shows that when the petitioner has sent a letter, dated 26.09.2012 to the Executive Engineer, TNEB/O&M, Hosur, denying the allegations of theft and consequently, the liability to pay the amounts, stated supra, with a copy marked to the Chief Engineer, Vellore and Superintending Engineer, TNEB, Dharmapuri. There was no response from the abovesaid authorities.
54. From the reading of the entire materials on record, it is evident that the finding of theft of energy, has been recorded, when the inspection was made by the Executive Engineer, (Operation and Maintenance), Tamil Nadu Generation and Distribution Corporation Ltd., Hosur, 3rd respondent, along with the Assistant Executive Engineer (O & M), C & I, Tamil Nadu Generation and Distribution Corporation Ltd., and the Assistant Executive Engineer, Enforcement (Vigilance), Tamil Nadu Generation and Distribution Corporation Ltd., who have inspected the factory. But no opportunity has been given to the petitioner before recording a finding of theft. But the admitted fact is that the petitioner has come forward to compound the offence, with a rider that the compounding is under protest.
55. Dealing with a similar contention of compounding of an offence under the Entertainment Tax Act and the consequential action for suspension of cinema licence, by the competent authority, under the Tamil Nadu Cinema Regulation Act, 1955, a Hon'ble Division Bench of this Court in Sri. Kamatchi Theatre, by its licensee K.Ramakrishnan vs. The District Collector, Madurai reported in 2000-2-L.W.255, has considered a decision in Biswabahan v. Gopen Chandra reported in AIR 1967 SC 895 and also the dictionary meaning of the word, "compounding", as follows:
47. The expression, compound or Composition has to be considered. In the Concise Oxford Dictionary in Law, the meaning for the word compound is given as:(a) condone a liability or offence in exchange for money etc., (b) forbear from prosecuting (a felony) from private motives, and Law come to terms with a person, for foregoing a claim etc., for an offence. For the expression compounding in Ramanathan Aiyar's Law Lexicon, the following meaning is given: Arranging, coming to terms; condone for money; arranging with the creditor to his satisfaction. For the expression "compounding felony of offence, the meaning given is Compounding an offence is defined to be the offence of taking a reward for forbearing to prosecute a felony; as where the party robbed takes his goods again or other amends upon an agreement not to prosecute. In other words, it means an agreement with the criminal not to prosecute him.
48. Section 320 of the Code of Criminal Procedure provides that the offences punishable under the Section of the Indian Penal Code specified in Section 320 of the Cr. P.C, may be compounded by the persons mentioned in the third Column of the Table. That Section provides what are the offences which are compoundable. Composition is different from withdrawal. For a valid composition, it must appear that the parties were free from any kind of interference and were fully aware of their rights. The said section provides that the offence must be punishable. The composition has the effect of acquittal and not discharge and it is not a bar to the prosecution of the accused for a distinct offence on the same facts.
49. It is also equally well settled that if a person is charged with an offence, then unless there is some provision for composition of it, the law must take its course, and the charge enquired into, resulting either in conviction or acquittal. A case may be compounded any time before the sentence is pronounced. The composition will have the effect of acquitting the accused. For a valid composition, the parties should be free from interference of every kind and was fully aware of his respective rights.
"50. In AIR 1967 SC 895 (Biswabahanv. Gopen Chandra) it has been held that if a person is charged with an offence however trivial it may be, then unless there is some provision for composition of it, the law must take its course and the charge enquired into resulting either in conviction or acquittal. The effect of such composition would depend on what the law provides for. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for, t he mere rendering of compensation would not amount to the vindication of the character of person charged with the offence. In this case, the Apex Court while considering the composition of offence under Section 345 of the Code of Criminal Procedure, 1898, held thus: We may now note the relevant provisions of the Code of Criminal Procedure Section 345(1) of the Code prescribes that the offences, thereunder, specified may be compounded by the persons mentioned in the third column of the appended Table. By sub-section (2), provision is made for the compounding of the offences specified in the first column of the Table appended to this sub-section by certain persons with the permission of court before which any prosecution for the offence is pending. Sub-section (6) l ays down that-
The composition of an offence under this section shall have the effect of the acquittal of the accused with whom the offence has been compounded.
It is, therefore, clear that to have the effect of an acquittal, the offence compounded must be one specified either under sub-section (1) or sub-section (2). The principle behind the scheme seems to be that wrongs of certain classes which affect mainly a person in his individual capacity or character may be sufficiently redressed by composition with or without the leave of the court as the case may be but any such proposition would have the effect of an acquittal. It was urged by Mr. Sarjoo Prasad tha t assuming the effect, of an acquittal to be the wiping out or negation of the wrongful conduct on the part of the accused, the scope of sub-section(6) was only limited to the offences specified in sub-sections (1) and (2) of Section 345 and the principle thereof could not be extended to offences under other Acts unless there was a provision similar to sub-section (6) in those Acts. It must be borne in mind that although the marginal note to Section 62 of the Assam Regulation is power to compound offences, the word compounding is not used in sub-section (1) Clause (a) of that section. That provision only empowers a forest officer to accept compensation for a forest offence from a person suspected of having committed it. The person so suspected can avoid being proceeded with for the offence by tendering compensation. He may think that he was being unjustly suspected of an offence and he ought to defend himself or he may consider it prudent on his part to pay such compensation in order to avoid the harassment of a prosecution even when he is of the view that he had not committed the offence. By adopting the latter course he does not remove the suspicion of having committed the offence unless he is to have such benefit conferred on him by some provision of law. In effect, the payment of compensation amounts to his acceptance of the truth of the charge against him. Sub-section (2) of Section 62 only protects him with regard to further proceedings, but has not the effect of clearing his character or vindicating his conduct.
51. In the light of the above, the expression composition or compounding of offence or irregularity means accepting the acquiescence or irregularity committed or the violation of the statutory provision, and by compounding the offence, the person who is permitted to compound, admits the irregularity or violation. It may be for ever so many reasons, or it may be to avoid embarrassment or the situation, to purchase peace. By mere compounding, such an individual is not exonerated, nor a blank shield or pr otection cover is thrown against him for the commission or omissions for which compounding is permissible under law. Therefore, it follows when once the licensee compounds the offence under Section 15 of the Act, it would mean that the licensee had committed or is reasonably suspected of having committed an offence and on his application, is permitted to compound the offence. In other words, it is a clear verdict by confession to avoid penal consequences.
52. Section 15 of the Entertainments Tax Act is an enabling provision which enables the authorities to compound such person who has committed an offence or reasonably suspected of having committed an offence against the provisions of the Act or the Rules made thereunder. By compounding the offence, by invoking Section 15 of the Act, die licensee or the person authorised by him admits the commission or omission of those offences or violations of statutory provisions for which a penalty or fine or imprisonment is provided for, as the case may be. In other words, it is^an admission of the guilt and on payment of certain compounding fee, the accused person is to be proceeded, which would not ipso facto mean that he has been cleared of the accusations or the offences committed by him.
...........
55.In all three cases, as well as in all the cases where the licensee had been permitted to compound the offence, and had been permitted to pay the compounding fee, it pre-supposes that the individual licensees or the Manager, or the authorised agent admits the violation of the provision of the Entertainments Tax Act or the Rules and confess guilty of an offence punishable under the said Act. Only on that basis, compounding is permitted by the authorities constituted under the Entertainment Tax Act. Compounding presupposes an admission of the misconduct which is either a technical or a statutory violation which is punishable under the statutory provision in respect of which compounding of the offence is permitted.
56. In other words, it is admission of the guilt which has led to the passing of an order of permission to compound, and there is nothing further to be tried or to be gone into after the licensee had been permitted to compound an offence under Section 15 of the Entertainment Tax Act. It is a verdict by confession and, therefore, the consequences follows." (emphasis supplied)
56. When compounding of an offence is made under protest by the consumer, it could be argued that the consumer is not agreeable to any provisional conclusion of theft. But the question is whether the compounding of an offence can be made, under protest. In terms of the Hon'ble Division Bench judgment in Sri. Kamatchi Theatre's case (cited supra), compounding is an admission of guilt, which leads to an order, granting permission to compound, under Section 152 of the Electricity Act, 2003, which is deemed to be an acquittal, under the said Section. But at the same time, one can visualize the situation, at the time of inspection, where the consumer faces the threat of disconnection, on the conclusion of theft by the authority and he may be constrained to take a decision immediately.
57. The assessing officer arrives at a prima facie conclusion of theft, on the basis of evidence, recorded at the time of inspection, and at that time, the consumer can come forward to accept the guilt of offence by compounding the offence, under Section 152 of the Electricity Act and thereby, avoid prosecution before the Criminal Court. Once the consumer decides to compound the offence, there is no question of contending that the compounding of the offence was under protest, because compounding under protest is not recognised in law. An offence cannot be permitted to be compounded under protest. If the consumer protests, then it is for the authorised officer to record such protest and lodge a complaint to the police station, having jurisdiction. If the consumer accepts the guilt of offence unequivocally, by compounding, the consumer can avoid prosecution. When there is payment of compounding fee, under protest, law does not restrict the powers of the authorised officer to launch prosecution. In a given case, to avoid prosecution, the consumer may come forward to remit the compounding fee, under protest and there is always a possibility to avoid fine, or imprisonment on conviction, by the Court of competent criminal jurisdiction.
58. Reading of the provisions, stated supra, makes it clear that there could be two simultaneous proceedings, one for the commission of theft of energy under Section 135 of the Act and the other, for assessment of loss to the licencee. Section 135 of the 2003 Act deals with an offence of theft of electricity, for which, appropriate fine or sentence on conviction, is contemplated. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is the relevant factor for rendering a finding on theft. On the contrary, Section 126 of the 2003 Act read with Regulation 19 of the Tamil Nadu Electricity Supply Code, does not speak of any criminal intent. The assessment made is applicable under Section 127 of the Act. Whereas, in the case of theft, though there is an assessment, as per the procedure contained in Regulation 23-AA of the abovesaid Code and as provided for, in Forms 8 and 9 of Appendix to the Supply Code, there is no appeal. If the consumer has come forward to compound the offence of theft, there can be no appeal, on the finding of the Inspecting Officer, regarding theft, but if the authorised officer, while computing the loss of revenue to the licencee, commits an error in computation of the loss of assessment, should the consumer be left without any remedy, excepting to approaching the High Court, under Article 226 of the Constitution of India, is the question to be decided.
59. Inasmuch as theft of energy is punishable with variable amounts of fine or imprisonment or both on conviction, depending upon the number of times, the offence has been committed, by the consumer, there is possibility of such consumer, escaping the clutches of law, by simply compounding the offence. Therefore, if there is a case of compounding under protest, in my humble opinion, the authorised officer has to launch prosecution, at once.
60. The legislative intention behind the usage of the words, "conviction" and "fine" in Section 135 of the Electricity Act, 2003, makes it clear that when there is a case of theft, the authorised officer, can permit the consumer to compound the offence and apart from that, has to make an assessment of loss of revenue to the licencee and while doing so, has to follow the procedure and the method in arriving at the loss, as stated supra.
61. It could be deduced from the reading of the provisions, the matter pertains to the assessment of loss to the supplier or licencee, is quasi-judicial, whereas, the aspect of punishing the consumer, for an offence, under Section 135 of the Act, is judicial. The authorised officer is not empowered to convict the consumer for theft, but he has power to accept the compounding by the consumer, as per Sectin 152 of the Electricity Act, 2003, which states that, notwithstanding anything contained in the Code of Criminal Procedure 1973, 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 given in the Table thereunder. Both under Sections 126 and 135 of the Electricity Act, 2003, while making an assessment of loss, the function of the assessing officer is quasi-judicial. When the consumer is given a right of appeal against the final assessment order under Section 126 of the Act, then if such quasi-judicial authority, under Section 135 of the Electricity Act, on his own motion, arrives at a provisional conclusion of theft of electrical energy and proceed to make an assessment, as per Regulation 23-AA of the Supply Code, 2004, the consumer should equally be provided with an opportunity of challenging the assessment made by the quasi-judicial authority. If there is a case of compounding, then the Consumer should not be permitted to canvass on the correctness of the finding of guilt or on the ground that he was compelled to compound under protest. Once option is exercised by the consumer to compound the offence, there is no question of retracting the same.
62. It is well settled that judicial review under Article 226 of the Constitution of India, is circumscribed only to the decision making process and not the decision, arrived at on the basis of some evidence, based on the principles of preponderance of probability and the findings, cannot be re-appreciated and substituted by this Court, more so, when there is admission of theft. If the contentions of the respondents, particularly, the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, to the effect that no appeal remedy is available under the Statute to the consumer, enabling the aggrieved person to challenge the assessment, then the High Court under Article 226 of the Constitution of India, would be burdened with the writ petitions, arising out of any order, passed by the assessing officer, either provisional or final, as the case may be.
63. Electricity Act, 2003 confers powers on the Tamil Nadu Electricity Regulatory Commission to frame regulations. Accordingly, Regulation 23-AA has been framed by the Tamil Nadu Electricity Regulatory Commission, Chennai, devising a procedure for passing a provisional assessment order and after affording an opportunity of hearing to the consumer, to pass a final assessment order, even in the case of theft. In the case of compounding of an offence, punishable under Section 135(1)(a) to (e) of the Electricity Act, 2003, the Special Court, in exercise of powers under Section 153, is also empowered to determine the civil liability, on the consumer. The terms on which the Special Court determines the civil liability on the consumer is almost the same, as contained in Regulation 23-AA of the Code. As per sub-Claues 5 and 6 of Section 153 of the Act, civil liability that could be determined by the Special Court and they are as follows:
"(5) In cases of theft by direct tapping from the licensee's lines, cables or electrical plant of the licensee, if the accused person unauthorizedly connects or reconnects any meter of the licensee in a disconnected service, then electric supply to such premises or place shall be disconnected forthwith by the licensee concerned. The licensee concerned may subsequently remove or divert or convert his line, cable or electrical plant to prevent further theft of electricity provided that such action shall not result in any inconvenience in affording quality supply or disruption of supply, to other consumers.
(6) The authorized officer and any other officer of the licensee concerned who accompanied the authorized officer shall sign the inspection report in all the above cases and obtain signatures of the accused person or his representative and the same must be handed over to the accused person or his representative at site immediately under proper receipt. In case of refusal by the accused person either to sign or accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in or outside the premises and a note recorded on the office copy of the inspection report to the effect that the copy of the report has been pasted at the conspicuous place of the premises. A copy of the report shall be subsequently sent to the accused person of the premises under registered post within three days of inspection."
64. Insofar as the determination of the civil liability by the Special Court, is concerned, or for the matter, imposition of appropriate fine or imprisonment, as the case may be, depending upon the repetition of the offence, the person aggrieved over the determination of the civil liability or fine or imprisonment or both, as the case may be, is given a right to challenge the same before the Court of competent jurisdiction under the provisions of the Code of Criminal Procedure. There may be instances, where the assessing officer or the Special Court, as the case may be, commit an error in the manner of assessment or determination of civil liability. Evidence adduced, on behalf of the consumer, would not have been considered in proper perspective or overlooked, resulting in miscarriage of justice. In such an event, when the aggrieved consumer, is at liberty to challenge the civil liability, determined by the Special Court, before the High Court, then the consumer, who has avoided prosecution, by compounding the offence, paid the compounding fee, should also be permitted to test the correctness of the manner of computation of the civil liability, when such civil liability is fastened on the consumer by the assessing officer. As such, there is no provision in the Electricity Act, 2003 or Supply Code framed by the Regulatory Authority, to question the manner of computation of civil liability or in otherwords, the final assessment order. As observed earlier, assessment of the civil liability or loss caused to the licencee, is made after considering the objections of the consumers and evidence, if any, adduced. The material evidence adduced by the department is also relevant at the time of assessment.
65. Writ jurisdiction does not ordinarily deal with the questions of fact and more particularly, when a finding is recorded by the Original Authority. Judicial review is restricted to the decision making process or the challenges to perversity, violation of principles of natural justice or lack of jurisdiction. If there is an error or illegality committed by the authority in the method, while arriving at the assessment or for any of the reasons, stated supra, there should be a forum constituted under the Act or the Supply Code, to challenge the assessment. But as stated supra, the consumer, having compounded the offence, should not be permitted to challenge, the aspect of his act of compounding. Apparently, there is no such forum constituted under the Act or in the Regulations framed under Regulation 23-AA of the Tamil Nadu Electricity Supply Code, 2004. There is causus ommisus in the Statute as well as in the Supply Code. Therefore, this Court is inclined to suggest to the Court of Tamil Nadu Energy Department, Chennai, or the Tamil Nadu Regulatory Commission to make a provision, constituting an authority, before whom, the final assessment made under Section 135 of the Act, can also be tested.
66. In the light of the above discussion, as compounding under protest is not acceptable, the respondents are at liberty to proceed further in accordance with law. However, this Court is inclined to direct the respondents to initiate proceedings, as contemplated under Regulation 23-AA of the Tamil Nadu Electricity Supply Code, 2004, pursuant to the proceedings of the 3rd respondent, dated 25.09.2012 and 26.09.2012 and pass orders, after affording opportunity to the petitioner, within a period of two months, from the date of receipt of a copy of this order.
67. With the above directions, the Writ Petition is allowed. No costs.
25.11.2013 Index: Yes Internet: Yes skm To
1. The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri.
2. The Superintending Engineer, Krishnagiri Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Dharmapuri.
3. The Executive Engineer, Operations & Maintenance, Tamil Nadu Generation and Distribution Corporation Ltd., Hosur.
S. MANIKUMAR, J.
Skm
4. The Registrar, Tamil Nadu Electricity Regulatory Commission, Chennai.
5. The Secretary, Tamil Nadu Electricity Regulary Commission, Chennai.
W.P.No.25849 of 201325.11.2013